728 N.E.2d 1111 | Ohio Ct. App. | 1999
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *513
A review of this record on appeal reveals that on November 17, 1992, appellant was indicted on one count of murder, R.C.
I. WHERE TRIAL COUNSEL HAS A VIABLE DEFENSE BUT PURSUASIVELY (SIC) INDUCES APPELLANT INTO A PLEA OF NOT GUILTY AND, WHERE SUCH ACTIONS CANNOT REASONABLY BE CONSIDERED AS EITHER TACTICAL OR STRATEGIC, AND WHERE TRIAL COUNSEL PERMITS THE TRIAL COURT TO INCLUDE IN THE CHARGE APPELLANT IS PLEADING GUILTY TO, AN ERRONEOUS FELONY NOT INCLUDED IN THE OFFICIAL COURT RECORDS AND IS NOT A LESSER INCLUDED OFFENSE OF THE ORIGINAL CHARGE IN THE INDICTMENT, APPELLANT'S RIGHTS TO THE EFFECTIVE ASSISTANCE OF COMPETENT COUNSEL HAS BEEN DENIED IN VIOLATION OF THE
SIXTH ANDFOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLEI , §§10 AND16 OHIO CONSTITUTION.II. WHERE TRIAL COUNSEL FAILS TO INVESTIGATE AND/OR INTERVIEW MATERIAL WITNESSES FOR BOTH THE STATE AND DEFENSE, THAT WHICH WAS FULLY DISCLOSED TO COUNSEL AND THAT WHICH CLEARLY WOULD BENEFIT THE DEFENSE, APPELLANT'S RIGHT TO A FAIR TRIAL AND EFFECTIVE ASSISTANCE OF COUNSEL HAS BEEN DENIED, IN VIOLATION OF THE
SIXTH ANDFOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ARTICLEI , §§10 AND16 , OHIO CONSTITUTION.III. WHERE TRIAL COUNSEL FAILS TO FULLY AND HONESTLY INFORM APPELLANT OF ALL RELEVANT AND MATERIAL FACTS IN EVIDENCE IN THE CASE, AND THE PERTIENT (SIC) LAW, APPELLANT WAS NOT PROVIDED THE EFFECTIVE ASSISTANCE OF COMPETENT COUNSEL AND HIS GUILTY PLEA IS NOT BASED UPON A KNOWING AND INTELLIGENT VOLUNTARY DECISION.
IV. WHERE TRIAL COUNSEL HAS FULL KNOWLEDGE THAT HIS CLIENT IS RELUCTANT TO ENTER A PLEA OF GUILTY WHERE APPELLANT WHOLLY BELIEVES THAT HE IS NOT GUILTY, AND COUNSEL COERCESIVELY (SIC) INDUCES APPELLANT TO PROCEED WITH THE GUILTY PLEA AND SENTENCING IN SPITE OF APPELLANT'S CLEAR RESPONSES OF NOT GUILTY THEN RELUCTANT PLEA OF GUILTY, VIOLATES APPELLANT'S RIGHTS TO DUE PROCESS, AND EFFECTIVE ASSISTANCE OF COMPETENT COUNSEL, PROVIDED BY THE
SIXTH ANDFOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION, AND ARTICLEI , §§10 AND16 , OHIO CONSTITUTION.
Appellant in these assignments of error essentially contends that his appointed trial counsel was so ineffective that his representation fell below the objective standard of reasonableness and, but for his errors and omissions, the result of the proceedings would have been different. Appellant asserts that his appointed counsel induced him to enter a plea to which he could not knowingly and intelligently make because counsel failed to fully and competently advise him of both the charge and the sentence ultimately imposed upon him. Specifically, appellant contends that he was induced to enter his plea to a charge of involuntary manslaughter which stated that he unlawfully caused the death of the victim "as the proximate result of [his] committing or attempting to commit a felony." Appellant argues that the inclusion of such language was erroneous because no *515 factual basis existed for that crime and, as such, his due process rights were violated and an enhanced sentence was improperly imposed upon him.
It is well-settled that a petition for post-conviction relief brought pursuant to R.C.
Hearing on a petition for post-conviction relief is governed by R.C.
Before granting a hearing, the court shall determine whether there are substantive grounds for relief. In making such a determination, the court shall consider, in addition to the petition and supporting affidavits, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court's journal entries, the journalized records of the clerk of the court, and the court reporter's transcript. (Emphasis added.)
A criminal defendant seeking to challenge his conviction through a petition for post-conviction relief is not automatically entitled to such a hearing. State v. Cole (1982),
Moreover, where the petitioner asserts a claim of ineffective assistance of counsel, he bears the initial burden to submit evidence to demonstrate the lack of competent counsel and to demonstrate that his defense was prejudiced by counsel's ineffectiveness. Until he has done so, no evidentiary hearing is required. State v. Pankey (1981),
Further, when the trial court or appellate court is reviewing a plea submitted by a defendant its focus should be on whether the dictates of Crim.R. 11 have been followed. State v. Kelley (1991),
Crim.R. 11(C) states in pertinent part:
Pleas of guilty and no contest in felony cases.
* * *
*517(2) In felony cases the court may refuse to accept a plea of guilty or no contest, and shall not accept such plea without first addressing the defendant personally and:
(a) determining that he is making the plea voluntarily, with understanding of the nature of the charge and of the maximum penalty involved, and if applicable, that he is not eligible for probation;
(b) informing him of and determining that he understands the effect of his plea of guilty or no contest, and that the court upon acceptance of the plea may proceed with judgment and sentence;
(c) informing him of and determining that he understands that by his plea he is waiving his rights to jury trial, to confront witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to require the state to prove his guilt beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself.
The standard for determining whether a trial court properly accepts a plea is whether the court substantially complied with Crim.R. 11. State v. Stewart (1977),
In his underlying petition for relief brought pursuant to R.C.
Our review of the proceedings from the trial court reveals that on May 20, 1997 the trial court ordered the transcript of the June 1, 1994 plea hearing only. The record demonstrates that the transcript of the July 7, 1994 sentencing was not ordered by the trial court. Moreover, the trial court, in paragraph eight of its Findings of Facts and Conclusions of Law, indicated that its decision to deny appellant's petition was based upon its review of the record including the transcript of proceedings which took place on June 1, 1994. Finally, the trial court indicated that the transcript of proceedings which it reviewed was *518 attached as an appendix to the Findings of Fact and Conclusions of Law. Our review of the record indicates that this appendix includes the transcript of the June 1, 1994 plea hearing only.
However, the record clearly indicates that in his first claim for relief which alleged ineffective assistance of counsel, appellant relied upon a colloquy contained in the sentencing transcript to demonstrate that as part of his plea agreement he was offered a term of incarceration less than the term imposed by the court as the mandatory term. Appellant relies on his comments which indicate that he "don't know much about the legal system." He further stated that "[t]he plea bargain I was offered was two and a half years, two and a half years with good time and it's flat time. This is what I was offered, without a gun and specifications. Now that's what I was looking here, that's what my parents was looking here." The court stated "Okay. Now, I would appreciate it, Mr. Williams, if you would talk briefly to your client and make sure because what I heard * * *." Appellant contends that this evidences his confusion as to the crime to which he was induced to enter a plea and that the transcript shows that he was precluded from further addressing the court as to whether he wished to proceed with sentencing or to vacate his plea.
Further, in his second claim for relief appellant relied upon the sentencing transcript testimony to support his contention that his plea was not voluntarily made and that he had an incomplete understanding of the plea agreement as it was actually entered in court. At the sentencing hearing, appellant refers to his comments which indicated that "[a]s far as the time factor, I don't know too much about the time factor. You had a five-year number or something like that. I was offered a plea bargain which was two and a half and I hope it's still two and a half, or that's the way it should be." Appellant asserts that this testimony as demonstrated at the sentencing hearing provides evidence that he did not voluntarily plead guilty to a charge for which the minimum penalty was greater than the penalty which was agreed upon to be imposed by the court.
We are cognizant that the trial court's failure to review the entire transcript of proceedings before denying a petition for post-conviction relief without a hearing does not necessarily constitute reversible error. This court in State v. Broom (May 7, 1998). Cuyahoga App. No. 72581, unreported, affirmed the decision of the trial court to dismiss a petition for post-conviction relief where the trial court failed to consider the trial transcript in apparent violation of R.C.
Such is not the case here. In the matter sub judice, the trial court did not find that the claims asserted by appellant wereres judicata, but found in its Conclusions of Law that the petitioner has "failed to submit evidentiary documents setting forth sufficient operative facts to demonstrate that the guilty plea was coerced or induced by false promises."
Therefore, because appellant in his claims for post-conviction relief relied in part upon the transcript of the sentencing hearing as evidence to demonstrate that his plea was induced by false promises of his trial counsel and that his plea could not be knowingly made, we find that the trial court's failure to consider the complete transcript of proceedings prior to its determination of whether there are substantive grounds for relief as specified by R.C.
Reversed and remanded for further proceedings consistent with this opinion.
This cause is reversed and remanded for further proceedings consistent with the opinion herein.
It is, therefore, considered that said appellant recover from said appellee costs herein.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
TIMOTHY E. McMONAGLE, JUDGE *520
DYKE, J., CONCURS;
PORTER, A.J., DISSENTS, (WITH DISSENTING OPINION).
Dissenting Opinion
I respectfully dissent from the majority's disposition of this appeal reversing the denial of post-conviction relief. I would affirm the trial court's action on res judicata grounds. The majority points out that the trial court apparently failed to review the July 7, 1994 sentencing transcript upon which plaintiff's claims for post-conviction relief depended in part. However, whether or not the trial court reviewed the transcript of the July 7th sentencing hearing is immaterial because the doctrine of res judicata precluded the defendant from succeeding on post-conviction relief. As stated by this Court in State v. Thompson (Nov. 21, 1996), Cuyahoga App. No. 70532, unreported at 4:
Defendant-appellant's remaining arguments set forth in the first assignment of error, i.e., whether the plea was knowing and voluntary, whether the indictment was improperly amended and the effective assistance of counsel claim, could have been raised at the appellate level on direct appeal or through a delayed appeal, neither of which defendant-appellant attempted. Accordingly, defendant-appellant's remaining claims are now barred by the doctrine of res judicata as the trial court properly determined. State v. McCollough, supra; State v. Phillips (1993),
88 Ohio App.3d 409 .
It is plain to see that if the errors that defendant is now asserting occurred at the July 7th sentencing hearing, they are "notdehors the record and therefore should have been raised in a direct appeal not on post conviction * * * post conviction petitions are not appropriate substitutes for direct appeals. State v. Nichols
(1984),
Although the trial court may, as the majority contends, have abused its discretion in failing to consider the July 7th transcript, it is of no consequence to the merit of the appeal. The post-conviction motion was barred by res judicata whether or not the trial court reviewed the transcript because any deficiencies in the transcript could have been raised on direct appeal. I agree with the analysis of this Court in State v. Broom (May 7, 1998), Cuyahoga App. No. 72581, unreported, where this Court affirmed the trial court's dismissal of a petition for post-conviction relief notwithstanding the trial court's failure to review a trial transcript. It is likewise true here. Nothing would be gained by a "remand for the sole purpose of having the court review matters that are facially barred by res judicata * * *."Broom, supra, at 14. *521
The majority purports to distinguish the instant case fromBroom on the grounds that the trial court here "did not find that the claims asserted by appellant were res judicata * * *" (Maj. Opn. at 13). However, so long as the judgment of the trial court was correct, we are not at liberty to reverse simply because the trial court's rationale was incorrect. "A reviewing court is not authorized to reverse a correct judgment merely because erroneous reasons were assigned as the basis thereof." State ex rel. Fattlarv. Boyle (1998),
