State v. BanksState v. Banks
Rendered on June 7, 2011
Ron O‘Brien, Prosecuting Attorney, and John H. Cousins, IV, for appellee.
Andre R. Banks, pro se.
APPEALS from the Franklin County Court of Common Pleas.
BROWN, J.
{¶1} In these consolidated cases, Andre R. Banks, defendant-appellant, appeals from judgments of the Franklin County Court of Common Pleas, in which the court denied his motion for post-conviction relief, motion to vacate sentence, and motion to withdraw guilty plea.
{¶2} On July 1, 2007, appellant was driving under the influence of alcohol and marijuana when he drove left of center and struck another vehicle. The driver of the other
{¶3} On January 5, 2009, appellant plead guilty to one count of aggravated vehicular homicide and two counts of aggravated vehicular assault, none of which included specifications for driving under a suspended license. The aggravated vehicular homicide charge was reduced from a felony of the first degree to a felony of the second degree as the result of the agreed removal of the part of the charge indicating that appellant was driving under a license suspension. Thе aggravated vehicular assault charges were also reduced by a single degree as the result of the removal of the specification with respect to driving under a license suspension. A judgment entry finding appellant guilty was issued February 3, 2009. Appellant appealed the judgment, and this court affirmed the judgment in State v. Banks, 10th Dist. No. 09AP-224, 2009-Ohio-5582.
{¶4} On January 14, 2010, appellant filed a petition for post-conviction relief. On March 4, 2010, appellant filed a motion to vacate judgment and sentence. On July 19, 2010, appellant filed a motion to withdraw guilty plea. The trial court denied appellant‘s
[I.] Trial Counsel was ineffective for failing to raise defects in the indiсtment, pursuant to
Ohio R. Crim.P. 12(C)(2) , resulting in Plain Error as articulated underOhio R. Crim. P. 52(B) , because the indictment inaccurately stated that “the offender was driving under a suspension imposed under chapter 4510, or any other provisions of the Ohio Revised Code,” and this Plain Error prejudiced Appellant, permeated the entire proceeding, and denied Appellant‘s substantial rights to due process, guaranteed under VI and XIV Amendments of the U.S. Constitution.[II.] Trial Counsel was ineffective for failing to raise, or object to, the admissibility of the weight of the Blood Alcohol level of Appellant, where the State did not show that the tests were conducted and collected in accordance with Section
4511.19 and1547.11 of the Ohio Revised Code, and Sections 3701-53-05 and 3701-53-09 of the Ohio Administrative Code, denying Appellant‘s due process; VI and XIV Amendments of the U.S. Constitution.[III.] Trial Counsel was ineffective, in violation of the Ohio Rules Of Professional Conduct and Ethics, when he appeared, without appellant, and filed a Notice of a Change of Plea, without the knowledge or consent of Appellant, denying Appellant due process under VI and XIV Amendments.
[IV.] Trial Counsel was ineffective when he allowed Appellant to plea to Aggravated Counts of the offenses, without relying predicate offense convictions, or a plea of guilt to relying predicate charges, denying Appellant due process under VI and XIV Amendments of the U.S. Constitution.
[V.] Trial Court erred by denying Appellant an evidentiary hearing in Post-conviction Relief Petition, and stating his grounds, outside of the rеcord and unable to raise on direct appeal, were barred by res judicata, denying Appellant
substantive rights to due process under VI and XIV of the U.S. Const. [VI.] Trial Court did err by denying Appellant‘s Motion to Withdraw his Plea, as he received ineffective assistance of counsel and his plea was coerced, further denying substantive rights to due process under VI and XIV of the U.S. Const[.]
[VII.] The trial court failed to issue findings of fact and conclusions of law in its denial of Appellant‘s petition for post-cоnviction relief.
{¶5} We first address appellant‘s seventh assignment of error. Appellant argues that the trial court failed to issue findings of fact and conclusions of law, as requested by appellant. A decision or order dismissing a petition for post-conviction relief is not a final appealable order until the trial court files the requisite findings of fact and conclusions of law. See State v. Lester (1975), 41 Ohio St.2d 51, 55. When a trial court dismisses a post-conviction relief petition without holding an evidentiary hearing, it must entеr findings of fact and conclusions of law.
{¶6} As the Supreme Court of Ohio noted in State v. Mapson (1982), 1 Ohio St.3d 217, 219, important policy considerations underlie the requirement of findings of fact and conclusions of law, including to apprise petitioner of the grounds fоr the judgment of the trial court and to enable the appellate courts to properly determine the issues on
{¶7} The findings of fact and conclusions of law should be clear, specific, and complete. State v. Brust (Nov. 20, 1995), 4th Dist. No. 95CA551. They should be comprehensive and pertinent to the issues presented, demonstrate the basis for the decision, and be supported by the evidence. Calhoun at 292. While the trial court need not specifically designate parts of its decision as “findings of fact” and “conclusions of law,” the underlying rationale for the trial court‘s decision must bе sufficiently clear to allow for meaningful appellate review. State v. Knott, 4th Dist. No. 03CA6, 2004-Ohio-510, ¶8; State v. Grigsby, 2d Dist. No. 02CA16, 2003-Ohio-2823, ¶12-14.
{¶8} In the present case, the trial court did not expressly make “findings of fact” or expressly state “conclusions of law” in its decision. Notwithstanding, the trial court‘s decision clearly reflects its rationale for denying appellant‘s petition. Thus, it is a final, appealable order, and we shall address appellant‘s remaining assignments of error. Therefore, appellant‘s seventh assignment of error is overruled.
{¶9} Apрellant argues in his first assignment of error that the trial court erred when it denied his petition for post-conviction relief on the issue of his counsel‘s ineffectiveness for failing to contest defects in the indictment. Specifically, appellant contends his trial counsel was ineffective when he failed to contest the defects in the
{¶10} A trial court may rule on a post-conviction petition without first holding a hearing. Proper grounds for dismissing a petition for post-conviction relief without holding an evidentiary hearing include: (1) the failure of the petitioner to set forth sufficient operative facts to establish substantive grounds for relief, and (2) the operation of res judicata to bar the constitutional claims raised in the petition. Calhoun at paragraph two of the syllabus; State v. Lentz, 70 Ohio St.3d 527, 1994-Ohio-532. Under the doctrine of res judicata, a final judgment of conviction bars the convicted defendant from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial which resulted in that judgment of conviction or on an appeal from that judgment. State v. Perry (1967), 10 Ohio St.2d 175. A petition for post-conviction relief may defeat the res judicata bar only if its claims are based upon evidence outside the record. State v. Cole (1982), 2 Ohio St.3d 112, 113-14. Similarly, regarding claims of ineffective assistance of trial counsel in post-conviction proceedings, the Supreme Court of Ohio has stated that where a defendant, represented by different counsel on direct appeal, fails to raise in the direct appeal the issue of competent trial counsel and said issue could fairly have been determined without resort to evidence outside the record, res judicata is a proper basis for dismissing defendant‘s petition for post-conviction relief. Id. at syllabus.
{¶12} Furthermore, the Sixth Amendment to the United States Constitutiоn guarantees a criminal defendant the effective assistance of counsel. McMann v. Richardson (1970), 397 U.S. 759, 771, 90 S.Ct. 1441, 1449. Courts employ a two-step process to determine whether the right to effective assistance of counsel has been violated. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064. First, the defendant must show that counsel‘s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient рerformance prejudiced the defense. This requires showing that counsel‘s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id.
{¶13} An attorney properly licensed in the state of Ohio is presumed competent. State v. Lott (1990), 51 Ohio St.3d 160, 174. The defendant has the burden of proof and must overcome the strong presumption that counsel‘s performance was adequate or that counsel‘s action might be sound trial strategy. State v. Smith (1985), 17 Ohio St.3d 98, 100. In demonstrating prejudice, the defendant must prove that there exists a reasonable probability that, were it not for counsel‘s errors, the result of the trial would have been different. State v. Bradley (1989), 42 Ohio St.3d 136, paragraph three of the syllabus.
{¶15} Appellant‘s second assignment of error raises an issue addressed in both appellant‘s petition for post-conviction relief and his motion to withdraw guilty plеa.
{¶16} In the present case, appellant contends his trial counsel should have raised the issue that alcohol was used on his skin as an antiseptic when he had his blood collected for testing, in contravention of the Ohio Administrative Code and Ohio Revised Code. Appellant claims he informed his trial counsel that an alcohol swab had been used by the hospital to collect the blood sample. However, a petitioner is not entitled to a hearing if his claim for relief is unsupported by any operative facts other than defendant‘s own self-serving affidavit, which alone is legally insufficient to rebut the record on review. State v. Kapper (1983), 5 Ohio St.3d 36, 38. See also State v. Mayrides, 10th Dist. No. 03AP-347, 2004-Ohio-1623 (self-serving affidavits submitted by appellant are not sufficient to trigger a post-conviction hearing), citing State v. Steffen (May 11, 1994), 1st Dist. No. C-930351; State v. Clark, 10th Dist. No. 01AP-670, 2001-Ohio-3973 (appellant‘s self-serving affidavit is insufficient to allow post-conviction relief). Here, although in his affidavits attached to his motion and petition appellant indicates the hospital used alcohol to sterilize his skin before taking his blood sample, and he did not know that the use of alcohol swabs during blood testing was prohibited, appellant did not specifically allege in his affidavits that he told his counsel that alcohol was allegedly used on him during his
{¶17} Appellant argues in his third assignment of error that his trial counsel was ineffective because he filed a notice of change of plea without appellant‘s knowledge. This issue was raised in appellant‘s motion to withdraw guilty plea. In making this argument in his motion, appellant cites to his trial counsel‘s itemized bill, which indicates on December 22, 2008, his counsel appeаred and “notified court of Change of Plea.” He also cites to his wife‘s affidavit, in which she averred that she had no knowledge that his counsel had filed a change of plea prior to January 5, 2009. We have no record of what exactly transpired before the court on December 22, 2008, and appellant does not argue that a change of plea was, in fact, entered on that date. Indeed, the record reveals that, on December 22, 2008, the court entered a continuance until January 5, 2009 for a “trial.” Thus, there is no dispute that a change of plea was not entered on December 22, 2008,
{¶18} Appellant‘s fourth assignment of error relates to issues raised in both appellant‘s petition for post-conviction relief and motion to withdraw guilty plea. Appellant argues that his trial counsel was ineffective because trial counsel allowed him to plead guilty to aggravated vehicular homicide and aggravated vehicular assault when he was not convicted of the “predicate offenses” of operating a motor vehicle under the influence of alcohol or driving without a license. However, this claim is barred by res judicata. Appellant сould have raised this issue on direct appeal, and it could have been determined without resort to evidence outside the record. Therefore, appellant‘s fourth assignment of error is overruled.
{¶19} Appellant argues in his fifth assignment of error that the trial court erred when it denied him an evidentiary hearing on his petition for post-conviction relief, found his arguments were barred by res judicata, and rejected his affidavit because it was self-serving. In this assignment of error, appellant basically reargues all of his arguments from his petition for post-conviction relief, many of which we have already addressed in his other assignments of error. Beyond the arguments we have already addressed above, appellant also argues that his counsel was ineffective for failing to present facts that would have mitigated appellant‘s role in the accident, specifically that his steering linkage had snapped in a pothole prior to driving left of center and thаt the decedent‘s wife
{¶20} We find appellant‘s contentions did not call for an evidentiary hearing. With regard to his counsel‘s failure to raise the mechanical problems with his vehicle at the sentencing hearing, appellant‘s counsel specifically addressed the mechanical condition of appellant‘s vehicle at the time of the accident. Appellant‘s counsel told the trial court that appellant‘s vehicle struck a pothole, there was no dispute that the vehicle had steering issues, and he believed the steering issues were a significant factor in the accident. The court then acknowledged the fact there may have been issues with appellant‘s car. Therefore, because appellant‘s counsel did raise this issue during sentencing, this argument is without merit.
{¶21} With regard to appellant‘s argument that the decedent‘s wife told a news reporter that decedent grabbed the wheel of the vehicle, and his trial counsel should have used this to mitigate appellant‘s role in the accident, we fail to find any prejudice in appellant‘s counsel‘s failure to present this fact to the trial court. Assuming trial counsel was aware of the interview/article, appellant‘s trial counsel may well have considered it a sound strategy not to shift any blame for the accident to the decedent. Further, his cоunsel may not have wished to present this article/interview because the remaining portion of the interview/article also indicates damaging statements from the decedent‘s wife that appellant‘s car was swerving back and forth across the center line. Appellant has failed to overcome the presumption that his counsel‘s action was sound trial strategy. See Smith at 100, citing Strickland at 694-95, 104 S.Ct. at 2065, citing Michel v. Louisiana (1955), 350 U.S. 91, 101, 76 S.Ct. 158, 164.
{¶23} Appellant argues in his sixth assignment of error that the trial сourt erred when it denied his motion to withdraw guilty plea, as he received ineffective assistance of trial counsel, and his plea was coerced. We first note that, on October 8, 2010, appellant filed a motion to strike his motion to withdraw guilty plea on the basis that his motion was insufficient and may fall short of obtaining the relief requested due to technical shortcomings. Thus, any error that appellant now claims on appeal was invited by his filing of his motion to strike and admission that the motion was insufficient. Under the invited error doctrine, a party will not be permitted to take advantage of an error which he himself invited or induced the trial court to make. State ex rel. Bitter v. Missig (1995), 72 Ohio St.3d 249, 254. Notwithstanding, appellant‘s arguments are without merit. Most of the arguments appellant raises in this assignment of error are the same arguments we have already addressed and rejected in appellant‘s first, second, third, fourth, and fifth assignments of error.
{¶24} Appellant also raises in this assignment of error the contention that the trial cоurt wrongly considered, for purposes of sentencing, the dismissed counts for driving under the influence of alcohol or drugs and the specifications for operating a vehicle while
{¶25} Appellant also claims that his guilty plea was coerced. Appellant asserts his trial counsel recommended he put himself at the mercy of the court, said that pleading guilty was “the only way,” said if he did not plead guilty the judge would sentence him to the maximum prison terms, and recommended that he not put the decedent‘s family through a trial. However, there is no evidence that this advice was incorrect or misguided. It appears to be typical advice trial counsel might present to a defendant under these circumstances. Althоugh appellant may not have liked the advice, an attorney‘s advice to take a plea deal is not ineffective assistance of counsel. State v. Shugart, 7th Dist. No. 08 MA 238, 2009-Ohio-6807, ¶37, citing State v. Jones, 7th Dist. No. 06 MA 17, 2008-Ohio-3352, ¶9. The attorney is there to give informed advice, to relate worst case scenarios to his client, and to make a recommendation, regardless of whether it upsets the client.
{¶26} Accordingly, appellant‘s seven assignments of error are overruled, and the judgments of the Franklin County Court of Common Pleas are affirmed.
Judgments affirmed.
FRENCH and TYACK, JJ., concur.