STATE OF OHIO v. VON CROSSLEY
Appellate Case No. 2020-CA-10
In the Court of Appeals of Ohio, Second Appellate District, Clark County
December 11, 2020
2020-Ohio-6640
Trial Court Case Nos. 2018-CR-446 and 2018-CR-601
Plaintiff-Appellee
v.
Defendant-Appellant
(Criminal Appeal from Common Pleas Court)
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OPINION
Rendered on the 11th day of December, 2020.
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JOHN M. LINTZ, Atty. Reg. No. 0097715, Assistant Prosecuting Attorney, Clark County Prosecutor‘s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee
VON CROSSLEY, Inmate No. 748-992, Chillicothe Correctional Institution, P.O. Box 5500, Chillicothe, Ohio 45601 Defendant-Appellant, Pro Se
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WELBAUM, J.
Facts and Course of Proceedings
{2} Following a June 28, 2018 traffic stop, Crossley was indicted on multiple weapon and drug offenses in Clark C.P. Nos. 2018-CR-446 and 2018-CR-530. In Case No. 2018-CR-446, Crossley was charged with single counts of carrying a concealed weapon in violation of
{3} On August 8, 2018, Crossley filed a motion to suppress. A hearing on the motion was scheduled for September 14, 2018. However, before the suppression hearing began, the trial court arraigned Crossley in Clark C.P. No. 2018-CR-601, which was filed to add a forfeiture specification to the already existing indictment in Case No. 2018-CR-530. Therefore, the charges in Case No. 2018-CR-601 were the same as in Case No. 2018-CR-530; the only difference was the inclusion of the forfeiture specification.
{4} Crossley‘s suppression hearing commenced as scheduled. During the
{5} At Crossley‘s plea hearing, the trial court conducted a
{6} With regard to Case No. 2018-CR-446, the trial court sentenced Crossley to one year in prison for carrying a concealed weapon, one year in prison for improperly handling firearms in a motor vehicle, and one year in prison for receiving stolen property.
{7} In Case No. 2018-CR-601, the trial court merged the two drug offenses, and the State elected for Crossley to be sentenced on the aggravated trafficking offense. The trial court sentenced Crossley to 8 years in prison for aggravated trafficking and one year in prison for the attendant firearm specification, making his sentence a total of nine years in prison. The trial court ordered the nine-year sentence in Case No. 2018-CR-601 to run consecutively with the three-year sentence in Case No. 2018-CR-446, for a total, aggregate sentence of 12 years in prison.
{8} Crossley appealed from his convictions in both cases. On appeal, Crossley raised two assignments of error arguing that: (1) the record did not clearly and convincingly support the sentence imposed by the trial court; and (2) the imposition of maximum sentences was contrary to law. This court overruled both of Crossley‘s assignments of error and affirmed the judgments of the trial court in State v. Von Crossley, 2d Dist. Clark No. 2018-CA-121, 2019-Ohio-2938.
{9} On October 7, 2019, Crossley filed an application to reopen his appeal pursuant to
{10} After granting Crossley‘s application for reopening, we appointed Crossley a new appellate counsel. Crossley‘s new counsel filed a merit brief arguing that his trial counsel was ineffective for not providing research on the merger issue and for not objecting when the trial court failed to merge the carrying a concealed weapon and improperly handling firearms offenses at sentencing. As required by
{11} On November 22, 2019, approximately two months after Crossley filed his application to reopen and 303 days after Crossley filed the trial transcript in his direct appeal, Crossley filed a timely petition for post-conviction relief. See
- Trial counsel sent substitute counsel, who did not know much about his case, to represent him at a court hearing where substitute counsel coerced him into entering a guilty plea instead of requesting
a continuance of his suppression hearing. - Substitute counsel coerced him into entering a guilty plea by falsely telling him that he would go to trial that day if he did not enter a guilty plea and by leading him to believe that he would not receive more than seven years in prison if he accepted the State‘s plea offer and pled guilty to the charges.
- Trial counsel failed to research whether the charges in Case No. 2018-CR-446 could be served concurrently or would merge as allied offenses.
- Trial Counsel did not complete the suppression hearing prior to his guilty plea and made the decision not to complete the suppression hearing without his permission.
{12} Crossley filed four affidavits from his friends and family in support of his petition for post-conviction relief. The affiants were Crossley‘s mother and father, and Crossley‘s friends, Timothy Tyler and Stephan Straughter. Each of the affiants averred to being present at court sometime before Crossley entered his guilty plea and witnessing Crossley‘s trial counsel tell Crossley that if he accepted the State‘s plea offer, he would receive no more than seven years in prison.
{13} Crossley also attached his own affidavit to his petition for post-conviction relief. In his affidavit, Crossley averred that at a September 28, 2018 hearing, his trial counsel told him and his friends and family in attendance that he would not receive more than seven years in prison if he accepted the State‘s plea offer and pled guilty to the charges in the indictment. Crossley also averred that when he later appeared at court
{14} According to Crossley, the substitute counsel knew nothing about the suppression hearing and falsely told him that his case would proceed to trial that day if he did not enter a guilty plea at that time. Crossley averred that the substitute counsel‘s conduct led him to believe that he had no other choice but to plead guilty. Crossley also averred that he had the substitute counsel contact his trial counsel via text message to ask what he should do, and that the substitute counsel led him to believe that his trial counsel advised him to accept the State‘s plea offer. Crossley averred that based on his previous discussions with trial counsel, he believed that he would receive no more than seven years in prison if he accepted the State‘s plea offer. Crossley‘s affidavit further indicated that but for trial and substitute counsel‘s conduct, Crossley would have chosen to complete the suppression hearing before entering a plea.
{15} On January 24, 2020, the trial court issued an entry denying Crossley‘s petition for post-conviction relief. In denying the petition, the trial court applied the two-prong ineffective assistance analysis in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) to Crossley‘s first three ineffective assistance claims. In doing so, the trial court found that Crossley had failed to satisfy the second prong of the Strickland analysis for each of those claims. Specifically, the trial court found that Crossley had failed to establish that the outcome of his plea and sentencing hearings would have been different but for counsel‘s alleged deficient performance. In so holding,
{16} Crossley now appeals from the trial court‘s judgment denying his petition for post-conviction relief, raising six assignments of error for review.
Standard of Review and Jurisdictional Matters
{17} This court reviews the denial of a petition for post-conviction relief for which no hearing was held under an abuse-of-discretion standard. State v. Harden, 2d Dist. Montgomery No. 23617, 2010-Ohio-3343, ¶ 10. “A trial court abuses its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.” (Citation omitted.) State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. An abuse of discretion “most often involves an ‘unreasonable’ decision that is not supported by a sound reasoning process.” State v. Mackey, 2018-Ohio-516, 106 N.E.3d 241, ¶ 8 (2d Dist.), citing State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. “Abuse-of-discretion review is deferential and does not permit an appellate court to simply substitute its judgment for that of the trial court.” Darmond at ¶ 34, citing State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14.
{18} The State claims that this court does not have jurisdiction to consider the instant appeal because Crossley‘s notice of appeal was not timely filed. We disagree.
{19} The State also claims that this court lacks jurisdiction to consider the instant appeal because Crossley‘s direct appeal in this matter was reopened and is currently pending before this court. The State provides no authority in support of this claim. Upon review, we find that the claim lacks merit and that we do have jurisdiction to review both appeals. See, e.g., State v. Holland, 5th Dist. Licking No. 11 CA 47, 2013-Ohio-904, and State v. Holland, 5th Dist. Licking No. 12 CA 56, 2013-Ohio-905 (appellate court contemporaneously reviewed direct and post-conviction-relief appeals arising from same trial court case).
{20} Having found no merit to the State‘s jurisdictional claims, we will proceed to review Crossley‘s six assignments of error in this appeal. For ease of discussion, we will review the assignments of error out of order. We note that Crossley‘s first four assignments of error mirror the ineffective assistance claims raised in his petition for post-conviction relief.
Third Assignment of Error
{21} Under his third assignment of error, Crossley contends that his trial counsel was ineffective because counsel failed to research whether the charges in Case No. 2018-CR-446 could be served concurrently or would merge as allied offenses. This claim relates to matters that are contained within the record; therefore, it should have
{22} Crossley‘s third assignment of error is overruled.
First and Second Assignments of Error
{23} Because they are interrelated, we will address Crossley‘s first and second assignments of error together. Under his first assignment of error, Crossley contends that he received ineffective assistance because his trial counsel sent substitute counsel, who knew little about his case, to represent him at the plea hearing. In his supporting affidavit, Crossley claimed that on the day he entered his plea, he thought he was at court to complete the hearing on his motion to suppress. Crossley claims that because substitute counsel was unfamiliar with his case, counsel proceeded with the plea
{24} Under his second assignment of error, Crossley specified that substitute counsel coerced him into pleading guilty by falsely telling him that he would go to trial that day if he did not enter a guilty plea. Crossley also claimed that he was led to believe that he would not receive more than seven years in prison for all his offenses if he accepted the State‘s plea offer.
{25} “To establish ineffective assistance of counsel, a defendant must demonstrate both that trial counsel‘s conduct fell below an objective standard of reasonableness and that the errors were serious enough to create a reasonable probability that, but for the errors, the outcome of the case would have been different.” State v. Thompson, 2d Dist. Montgomery No. 28449, 2019-Ohio-5140, ¶ 24, citing Strickland, 466 U.S. 668 at 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 and State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989).
{26} ” ‘In a petition for post-conviction relief, which asserts ineffective assistance of counsel, the petitioner bears the initial burden to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and that the defense was prejudiced by counsel‘s ineffectiveness.’ ” State v. Kapper, 5 Ohio St.3d 36, 38, 448 N.E.2d 823 (1983), quoting State v. Jackson, 64 Ohio St.2d 107, 413 N.E.2d 819 (1980), syllabus; Thompson at ¶ 26. “A trial court may dismiss a petition for post[-]conviction relief without a hearing ‘where the petition, the supporting affidavits, the documentary evidence, the files, and the records do not demonstrate that petitioner set forth sufficient operative facts to establish substantive grounds for relief.’ ” State v. Jones, 2d Dist. Clark No. 2018-CA-119, 2019-Ohio-2250, ¶ 13, quoting State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999), paragraph two of the syllabus.
{27} When making such a determination, a trial court has the discretion to weigh the credibility of any affidavits submitted with the petition. Calhoun at 284. “Generally, self-serving affidavits submitted by a defendant in support of his claim for postconviction relief are insufficient to trigger the right to a hearing or to justify granting the petition under
{28} In assessing the credibility of affidavits, the Supreme Court in Calhoun provided the following relevant factors to be considered:
- whether the judge reviewing the post[-]conviction relief petition also presided at the trial,
- whether multiple affidavits contain nearly identical language, or otherwise appear to have been drafted by the same person,
- whether the affidavits contain or rely on hearsay,
- whether the affiants are relatives of the petitioner, or otherwise interested in the success of the
petitioner‘s efforts, and - whether the affidavits contradict evidence proffered by the defense at trial. Moreover, a trial court may find sworn testimony in an affidavit to be contradicted by evidence in the record by the same witness, or to be internally inconsistent, thereby weakening the credibility of that testimony.
Calhoun at 285, citing State v. Moore, 99 Ohio App.3d 748, 754-756, 651 N.E.2d 1319 (1st Dist.1994).
{29} ” ‘Depending on the entire record, one or more of these or other factors may be sufficient to justify the conclusion that an affidavit asserting information outside the record lacks credibility.’ Clark at ¶ 22, quoting Calhoun at 285. ‘Such a decision should be within the discretion of the trial court.’ ” Id. ” ‘A trial court that discounts the credibility of sworn affidavits should include an explanation of its basis for doing so in its findings of fact and conclusions of law, in order that meaningful appellate review may occur.’ ” Id.
{30} A trial court commits “prejudicial error by failing to include in the decision and entry a sufficient explanation for its basis for discounting the credibility of sworn affidavits in support of the appellant‘s postconviction relief petition.” State v. Canada, 10th Dist. Franklin No. 16AP-7, 2016-Ohio-5948, ¶ 20, citing Calhoun at 285 and State v. Jackson, 10th Dist. Franklin No. 03AP-1065, 2004-Ohio-6438, ¶ 11. (Other citations omitted.) However, ” ‘where a petitioner relies upon affidavit testimony as the basis of entitlement to postconviction relief, and the information in the affidavit, even if true, does not rise to the level of demonstrating a constitutional violation, then the actual truth or falsity of the affidavit is inconsequential.’ ” State v. Murillo, 2d Dist. Montgomery No. 25958, 2014-Ohio-2097, ¶ 9, quoting Calhoun at 284.
{31} In this case, the trial court‘s findings of fact and conclusions of law in its entry denying Crossley‘s petition for post-conviction relief indicate that the court determined that even if Crossley‘s allegations regarding his counsels’ conduct were true, Crossley still did not establish an ineffective assistance claim because he failed to satisfy the second prong of the Strickland analysis. The second prong of that analysis requires Crossley to demonstrate that the conduct complained of affected the outcome of the plea process, i.e., ” ‘but for counsel‘s errors, he would not have pleaded guilty and would have insisted on going to trial.’ ” State v. Romero, 156 Ohio St.3d 468, 2019-Ohio-1839, 129 N.E.3d 404, ¶ 16, quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).
{32} With regard to Crossley‘s allegation that trial counsel inaccurately advised him that he would receive no more than seven years in prison if he accepted the State‘s plea offer, it is well established that inaccurate predictions as to what sentence will be imposed do not amount to ineffective assistance of counsel. See State v. Glass, 10th Dist. Franklin No. 04AP-967, 2006-Ohio-229, ¶ 34, quoting Wiant v. United States, No. 2:04-CV-256, 2005 WL 1651716 (S.D.Ohio 2005) (“courts have held that, ‘where an adequate guilty plea hearing has been conducted, an erroneous prediction or assurance by defense counsel regarding the likely sentence does not constitute grounds for invalidating a guilty plea on grounds of ineffective assistance of counsel’ “); State v. Bryant, 2013-Ohio-5105, 1 N.E.3d 878, ¶ 32 (10th Dist.) (finding that even if counsel had misinformed appellant about the sentence, an attorney‘s mere inaccurate prediction of a sentence does not demonstrate the deficiency component of an ineffective assistance of
{33} At Crossley‘s plea hearing, the trial court confirmed Crossley‘s understanding of the parties’ plea agreement, which did not include an agreement as to the length of the sentence that would be imposed for Crossley‘s offenses. The trial court also specifically advised Crossley that the maximum possible prison sentence he could receive for all of his offenses was 13.5 years, which Crossley stated he understood. Therefore, at the time he entered his guilty plea, Crossley was put on notice that there was a possibility that he could receive a sentence greater than seven years. Accordingly, the trial court advisements at the plea hearing prevented the possibility of any prejudice arising from counsel‘s alleged statement that Crossley would receive no more than seven years in prison.
{34} Crossley, however, also alleged in his petition and averred in his supporting affidavit that, on the day he entered his guilty plea, substitute counsel falsely told him that he would be forced to go to trial that day if he did not enter a guilty plea. The averments in Crossley‘s affidavit further indicate that but for this comment by substitute counsel, Crossley would not have entered a plea, but would have waited to have his trial counsel complete the suppression hearing in order to see whether the trial court would have suppressed any of the State‘s evidence against him. Because the outcome of the suppression hearing could have potentially resulted in the suppression of evidence, it had the potential to affect the outcome of Crossley‘s case. Therefore, we find that Crossley‘s affidavit sufficiently raised a claim of prejudice arising from substitute counsel‘s alleged statement that Crossley would immediately proceed to trial if he did not enter a plea.
{35} Although it was within the trial court‘s discretion to discredit Crossley‘s
{36} Crossley‘s first and second assignments of error are sustained.
Fourth and Fifth Assignments of Error
{37} Crossley‘s fourth and fifth assignments of error are also interrelated; therefore, we will review them together as well. Under his fourth assignment of error, Crossley contends that his trial counsel was ineffective because counsel did not complete his suppression hearing before he entered his guilty plea, and because counsel made the decision not to complete the suppression hearing without his permission. Under his fifth assignment of error, Crossley contends that the trial court abused its discretion by failing to address the foregoing claim in the entry denying his petition for post-conviction relief.
{38} Under
{39} A trial court, however, “need not discuss every issue raised by appellant or engage in an elaborate and lengthy discussion in its findings of fact and conclusions of law.” Id. “The findings need only be sufficiently comprehensive and pertinent to the issue to form a basis upon which the evidence supports the conclusion.” Id., citing State v. Clemmons, 58 Ohio App.3d 45, 46, 568 N.E.2d 705 (1989). (Other citation omitted.) Therefore, “a trial court properly denies a petition for postconviction relief, made pursuant to
{40} In this case, the trial court‘s entry denying Crossley‘s petition for post-conviction relief did not specifically address Crossley‘s claim that his trial counsel was ineffective for failing to complete the suppression hearing. The findings of fact and conclusions of law contained in the entry are also not pertinent to that issue. Therefore, because there is no ruling from which we can determine the trial court‘s basis for denying Crossley‘s fourth ineffective assistance claim, we are unable to review that claim on appeal. See, generally, State v. Reed, 2016-Ohio-7416, 72 N.E.3d 1196, ¶ 29 and State v. Delossantos, 9th Dist. Loraine No. 11CA009951, 2012-Ohio-1383, ¶ 20 (finding that there was no trial court ruling for the appellate court to review).
{41} Crossley‘s fourth and fifth assignments of error are sustained to the extent that Crossley‘s fourth ineffective assistance claim was not ruled on by the trial court.
Sixth Assignment of Error
{42} Under his sixth assignment of error, Crossley contends that both his trial and appellate counsel were ineffective in failing to provide him with a copy of his discovery packet. Crossley, however, did not raise this issue in his petition for post-conviction relief. Because Crossley did not first raise this issue in the trial court, the claim is not properly before this court on appeal. State v. Thomas, 2d Dist. Darke No. 2013-CA-11, 2014-Ohio-2666, ¶ 21, citing State v. Webb, 2d Dist. Darke No. 06-CA-1694, 2007-Ohio-3446, ¶ 1 and State v. Garrett, 7th Dist. Belmont No. 06 BE 67, 2007-Ohio-7212, ¶ 8 (“the appellate court can only address those arguments presented to the trial court in the original petition; any new arguments cannot be considered for the first time on appeal“).
{43} In addition, it is well established that claims alleging the ineffective assistance of appellate counsel are not cognizable in post-conviction proceedings and that a petition for post-conviction relief is not the appropriate means by which to raise that issue. State v. Owensby, 2d Dist. Montgomery No. 27607, 2018-Ohio-2967, ¶ 12, citing State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), paragraph one of the syllabus; State v. Moore, 10th Dist. Franklin No. 14AP-390, 2015-Ohio-426, ¶ 8; State v. Isham, 2d Dist. Montgomery No. 15136, 1995 WL 502255, *3 (Aug. 23, 1995); State v. Leigh, 2d Dist. Montgomery No. 18841, 2001 WL 1345961, *1 (Nov. 2, 2001). The
{44} Crossley‘s sixth assignment of error is overruled.
Conclusion
{45} Having sustained Crossley‘s first, second, fourth, and fifth assignments of error, the judgment of the trial court denying Crossley‘s petition for post-conviction relief is reversed, and the matter is remanded to the trial court. On remand, the trial court shall examine Crossley‘s supporting affidavits and consider all the relevant factors, including those specifically mentioned in Calhoun, for purposes of determining the credibility of the affidavits and whether or not the affidavits present sufficient operative facts in support of Crossley‘s first and second ineffective assistance claims. The trial court shall also address Crossley‘s fourth ineffective assistance claim in its decision.
{46} Judgment reversed and remanded.
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DONOVAN, J. and HALL, J., concur.
Copies sent to:
John M. Lintz
Von Crossley
Hon. Douglas M. Rastatter