State v. DavisState v. Davis
Julia R. Bates, Lucas County Prosecuting Attorney, and Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.
Donald Gallick, for appellant.
OSOWIK, J.
{¶ 1} In this consolidated appeal, appellant, Anton Davis, appeals the March 31, 2022 judgment of the Lucas County Court of Common Pleas, denying appellant‘s post-sentence motion for a new trial and petition for postconviction relief filed October 14,
{¶ 2} The historical facts of this case are brought forward from State v. Davis, 6th Dist. Lucas Nos. L-19-1298, L-19-1299, 2020-Ohio-4539, 159 N.E.3d 331, ¶ 1-16:
On April 8, 2016, appellant‘s vehicle was searched during a traffic stop. Law enforcement seized a firearm and a green leafy substance, which was submitted to the Toledo Police Forensic Laboratory for analysis. The analysis found that the items contained controlled substances, specifically MMB-CHMICA. On January 12, 2017, in case No. CR0201701077, appellant was indicted on: one count of carrying concealed weapons in violation of
R.C. 2912.12(A) (2) and (F), a felony of the fourth degree; and one count of trafficking in drugs in violation ofR.C. 2925.03(A) (2) and (C) (8) (g), a felony of the first degree, with a major drug offender (“MDO“) specification attached pursuant toR.C. 2941.1410 . At this point, appellant retained counsel and on January 31, 2017, appellant entered a plea of not guilty.On March 9, 2017, the Toledo Police executed a search warrant at appellant‘s residence. Toledo Police seized over 800 grams of synthetic marijuana and drug paraphernalia.
On April 9, 2017, police made a traffic stop of a vehicle in Toledo, Ohio. Appellant was a passenger in the vehicle. A search was conducted and over 80 grams of synthetic marijuana was seized from the vehicle.
The items seized, from the two events mentioned above, were submitted to the Toledo Police Forensic Laboratory, and were found to contain controlled substances, specifically 5-Fluoro ADB and MMB-FUBINACA. These substances are commonly known as the drug K2, which is a Schedule I narcotic.
On April 19, 2017, appellant‘s counsel filed a motion for independent analysis of controlled substance. On June 27, 2017, the trial court granted appellant‘s motion to obtain independent testing of the substance found during the search. However, the record lacks information on whether appellant‘s attorney arranged for the independent testing to be completed.
On July 11, 2017, in case No. CR0201702181, appellant was indicted on: one count of trafficking in drugs in violation of
R.C. 2925.03(A)(2) and (C)(8)(E), a felony of the second degree; one count of possession of a controlled substance in violation ofR.C. 2925.11(A) and (C)(8)(d), a felony of the second degree; one count of trafficking in a controlled substance in violation ofR.C. 2925.03(A)(2) and (C)(8)(f), afelony of the first degree; one count of possession of a controlled substance in violation of R.C. 2925.11(A) and (C)(8)(d), a felony of the first degree; three counts of trafficking in a controlled substance in violation ofR.C. 2925.03(A)(2) and (C)(8)(g), felonies of the first degree, with MDO specifications pursuant toR.C. 2941.1410 attached: three counts of possession of a controlled substance in violation ofR.C. 2925.11(A) and (C)(8)(f), felonies of the first degree, with MDO specifications attached pursuant toR.C. 2941.1410 ; one count of having weapons while under disability in violation of2923.13(A)(3) and (B), a felony of the third degree; one count of illegal manufacture of drugs, in violation ofR.C. 2925.04(A) , (C)(1), (C)(2) and (E), a felony of the first degree; one count of illegal assembly or possession of chemicals for the manufacture of drugs in violation ofR.C. 2925.041(A) , (B), and (C), a felony of the second degree; and one count of illegal use or possession of drug paraphernalia in violation ofR.C. 2925.14(C)(1) and (F), a misdemeanor of the fourth degree. Appellant‘s girlfriend at the time was indicted as his co-defendant on similar charges, but those charges were later dropped.On September 27, 2017, appellant entered two guilty pleas. In case No. CR0201701077, appellant pled guilty to carrying concealed weapons and trafficking in a controlled substance with an MDO specification
attached. In exchange, appellee requested a nolle prosequi as to Count 3, appellee‘s recommendation that the prison sentence would not exceed 14 years when aggregated with case No. CR0201702181, and appellee‘s silence regarding judicial release. The plea agreement states: I understand the nature of these charges and the possible defenses I might have. I am satisfied with my attorney‘s advice, counsel and competence. I am not now under the influence of drugs or alcohol. No threats have been made to me. No promises have been made except as part of this plea agreement, stated entirely as follows: The State of Ohio will request nolle prosequi as to count three. The State of Ohio will recommend that the prison sentence not exceed 14 years aggregated with CR-17-2181. The State will remain silent regarding judicial release.
In case No. CR0201702181, appellant pled guilty to two counts of trafficking in a controlled substance; in exchange, appellee requested a nolle prosequi as to all other counts and all specifications, appellee‘s recommendation that the prison sentence would not exceed 14 years aggregated with case No. CR0201701077, and appellee‘s silence regarding judicial release. The plea agreement appellant signed states:
I understand the nature of these charges and the possible defenses I might have. I am satisfied with my attorney‘s advice, counsel and
competence. I am not now under the influence of drugs or alcohol. No threats have been made to me. No promises have been made except as part of this plea agreement, stated entirely as follows: The State of Ohio will request nolle prosequi as to count 2, 3, 4, the specification attached to count 5, counts 6, 7, 8, 9, 10, and their specifications, and count[s] 11, 12, 13, 14. The State of Ohio will recommend that the prison sentence not exceed 14 years aggregated with CR-17-1077. The State will remain silent regarding judicial release. At the plea hearing on September 27, 2017, appellant indicated that he could read, write, understand English, and that he was not under the influence of anything that would affect his ability to understand the proceedings. Appellant confirmed he understood the plea he was entering and the maximum prison terms and fines he could face. Appellant verified that he understood that his guilty plea was a complete admission of guilt. The trial court explained appellant‘s constitutional rights and appellant indicated he understood by entering the plea, and he waived them. Upon questioning by the trial court, appellant stated that he was satisfied with his attorney‘s advice and competence, that his attorney had represented him “very well,” and that it was in his best interest to enter the plea agreement. Appellant confirmed no threats had been made in order to induce him into
entering the plea. The trial court asked if there were any other representations made to defendant to get him to enter the plea. Appellant explained that he discussed the question with his attorney, stated that he had enough time to discuss the question with his attorney, and answered in the negative. Appellant agreed that he had an opportunity to review the plea forms with his attorney and that he signed them. Appellant stated he did not have any questions about anything that had taken place. The trial court accepted the pleas and found appellant guilty. On October 26, 2017, appellant filed a pro se motion to withdraw his plea indicating that: “the plea bargain I took is unacceptable for the crime and is cruel. There are things in the plea that I admitted to doing that I did not do.”
On December 5, 2017, appellant‘s counsel made a motion to withdraw from representation of appellant, which was granted. Appellant was then appointed new counsel on December 12, 2017, and a hearing on his motion to withdraw his plea was scheduled for January 10, 2018. At the January 10, 2018 hearing, appellant withdrew his motion to withdraw his guilty plea in open court.
On February 20, 2018, the trial court sentenced appellant, on both case numbers, to a mandatory term of two years in prison on both counts in
case No. CR0201701077, one year on the carrying concealed weapons count, and a mandatory term of 11 years for the trafficking in a controlled substance charge with a MDO specification attached, to be served concurrently. In the aggregate, the total sentence appellant must serve was 13 mandatory years. In May 2019, appellant retained new counsel who on behalf of appellant, filed a second motion to withdraw appellant‘s plea on May 3, 2019. After approved extensions, appellee filed their response on October 17, 2019. On November 15, 2019, the trial court denied appellant‘s motion to withdraw his plea.
This appeal was filed on December 18, 2019, to address whether the trial court erred in denying appellant‘s motion to withdraw his guilty plea. In that appeal, Davis argued that the trial court erred by denying his post-sentence motion to withdraw his guilty plea because the trial court failed to hold an evidentiary hearing regarding his motion; the plea was not knowingly, voluntarily, or intelligently made; he had ineffective assistance of counsel; and he was coerced into entering the guilty pleas.
{¶ 3} In State v. Davis, supra, we found that Davis’ claims were untimely filed and further, barred by the doctrine of res judicata. We found no error in the trial court‘s
{¶ 4} On October 14, 2021, Davis filed a motion for a new trial and a petition for postconviction relief with the trial court.
{¶ 5} In his petition, he presented five claims for relief.
FIRST CLAIM: DAVIS SUFFERED A DEPRIVATION OF THE CONSTITUTIONAL RIGHT TO DUE PROCESS BECAUSE THE SENTENCING JUDGE PREVIOUSLY REPRESENTED HIM AS HIS ATTORNEY.
SECOND CLAIM: DAVIS SUFFERED A DEPRIVATION OF THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HE WAS REPEATEDLY GIVEN ERRONEOUS LEGAL ADVICE.
THIRD CLAIM: DAVIS INCURRED INEFFECTIVE ASSISTANCE OF COUNSEL DUE TO NEGLECT IN THE YEARS 2019, 2020, AND 2021.
FOURTH CLAIM: DAVIS HAS BEEN WRONGFULLY-CONVICTED DUE TO FALSE TESTIMONY FROM A WITNESS.
FIFTH CLAIM: DAVIS IS WRONGFULLY-CONVICTED
BECAUSE HE DID NOT POSSESS NOR EXCHANGE ILLEGAL-DRUGS.
{¶ 6} On March 31, 2022 the trial court denied Davis’ petitions for postconviction relief. In denying appellant‘s motions, the trial court found the petitions to be untimely filed pursuant to
{¶ 7} In his appeal to this court in this instance, appellant presents three assignments of error for our review.
{¶ 8} In his first two assignment of error, Davis asserts:
THE TRIAL COURT ERRED BY FAILING TO HOLD A POST-CONVICTION HEARING CONCERNING POTENTIAL STRUCTURAL ERROR CAUSED BY APPELLANT‘S ORIGINAL TRIAL JUDGE PREVIOUSLY SERVING AS HIS DEFENSE ATTORNEY.
THE TRIAL COURT ABUSED ITS DISCRETION BY DISMISSING THE POST-CONVICTION PETITION WITHOUT A HEARING, AS THE PROFFERED EXHIBITS, TRANSCRIPT AND AFFIDAVITS WARRANTED AN EVIDENTIARTY HEARING.
TIMELINESS
{¶ 10}
{¶ 11} Nevertheless, under
(a) Either the petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief, or, subsequent to the period prescribed in division (A)(2) of section 2953.21 of the Revised Code or to the filing of an earlier petition, the United States Supreme Court recognized a new
federal or state right that applies retroactively to persons in the petitioner‘s situation, and the petition asserts a claim based on that right. [and] (b) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted or, if the claim challenges a sentence of death that, but for constitutional error at the sentencing hearing, no reasonable factfinder would have found the petitioner eligible for the death sentence.
{¶ 12} Davis argues that he was unavoidably prevented from discovery of the facts upon which he must rely to present his claims for relief.
{¶ 13} However, he submits affidavits concerning facts that were obviously discoverable at the time of his direct appeal. Wanda Davis, appellant‘s mother, alleges that she did not have access to the journal entries to establish that the trial court represented Davis in a case in 2003. However, the exhibit submitted to the trial court indicates that it was file-stamped in the Office of Clerk of Courts of Lucas County on March 4, 2003. This fact was easily discoverable as it was a matter of public record available 14 years prior to the indictment in this case in April, 2017.
RES JUDICATA
{¶ 14} At the outset, we will note that a defendant is not automatically entitled to an evidentiary hearing on a postconviction relief petition. State v. Jackson, 64 Ohio St.2d 107, 110, 413 N.E.2d 819 (1980).
{¶ 15} Because the burden is the petitioner, a postconviction relief petition may be denied without an evidentiary hearing where the petition and supporting materials do not demonstrate that the petitioner set forth sufficient operative facts to establish substantive grounds for relief. State v. Calhoun, 86 Ohio St.3d 279, 282-83, 714 N.E.2d 905 (1999).
{¶ 16} Review of this question is mixed. State v. Barber, 10th Dist. Franklin No. 16AP-172, 2017-Ohio-9257, ¶ 17, 20; cf. State v. Kane, 10th Dist. Franklin No. 16AP-781, 2017-Ohio-7838, ¶ 9.
{¶ 17} We review the factual findings of the trial court for compliance with the Calhoun analysis and also for whether the trial court abused the “sound exercise of discretion” permitted by Calhoun. Calhoun at 284; State v. Campbell, 10th Dist. Franklin No. 03AP-147, 2003-Ohio-6305, ¶ 14.
{¶ 18} We review questions of law de novo. Barber at ¶ 20; Kane at ¶ 9. A particular question of law for de novo review is whether a petition for postconviction relief should have been dismissed without a hearing because it was barred by the doctrine of res judicata. Ibrahim at ¶ 10.
{¶ 20} Therefore, notwithstanding the fact that a postconviction petition is a quasi-civil proceeding, constitutional issues cannot be considered in postconviction proceedings where those issues should have been raised on direct appeal and where the issues may be fairly determined without resort to evidence dehors the record. State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169 (1982), syllabus; State v. Nichols, 11 Ohio St.3d 40, 41-42, 463 N.E.2d 375 (1984).
{¶ 21} In support of his first assignment, counsel presents no arguments other than a suggestion “that a lawyer has the potential to discover shockingly negative information from his/her criminal client” and that when that lawyer presides over a criminal case involving a former client, it creates the appearance of a conflict-of-interest. Appellant does acknowledge that there is a minimal likelihood of success based upon these arguments, citing In re Disqualification of Ward, 77 Ohio St. 3d 1233, 1234, 674 N.E.2d 349 (1995).
{¶ 22} In this case, there is no argument nor any indication from the record before us of any personal bias from the judge toward appellant.
{¶ 24} Appellant has not presented any reason why his allegation of bias could not have been brought in his direct appeal. There is no indication from the record before us of any personal bias from the judge toward appellant. Thus, appellant was not denied effective assistance of counsel, and this argument is without merit. See State v. Carles, 6th Dist. No. WD-05-0105, 2006-Ohio-3047, ¶ 47.
GUILTY PLEA
{¶ 25} Davis also submits affidavits of his personal friends in which they each “recant” testimony. However, the record before this court is devoid of any testimony in this case. On September 27, 2017, appellant entered two guilty pleas. In case No. CR0201701077, appellant pled guilty to carrying concealed weapons and trafficking in a controlled substance with an MDO specification attached. In exchange, appellee requested a nolle prosequi as to Count 3, appellee‘s recommendation that the prison sentence would not exceed 14 years when aggregated with case No. CR0201702181, and appellee‘s silence regarding judicial release.
{¶ 26} Thus, the self-serving affidavits contradicting facts already admitted to by the appellant does not present constitutional error at trial where no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was
{¶ 27} As the Supreme Court stated in Menna v. New York 423 U.S. 61, 62-63, fn. 2, 96 S.Ct. 241, 46 L.Ed.2d 195(1975):
... a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case. In most cases, factual guilt is a sufficient basis for the State‘s imposition of punishment. A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction, if factual guilt is validly established. State v. Pennington, 2002-Ohio-2375, 2nd Dist., Clark County, No. 2001 CA 1.
{¶ 28} Other courts have previously held that where a defendant enters a guilty plea,
{¶ 29} By entering a plea of guilty, the accused is not simply stating that he did the discrete acts described in the indictment; he is admitting guilt of a substantive crime. State v. Barnett, 73 Ohio App.3d 244, 248, 596 N.E.2d 1101 (2d Dist.1991),
{¶ 30} For the foregoing reasons, we find appellant‘s first two assignments of error to be not well-taken and DENIED.
{¶ 31} Davis presents a third assignment of error:
THE TRIAL COURT‘S ORDER OF DISMISSAL ERRONEOUSLY DECLARED THAT APPELLANT FAILED TO PRESENT EVIDENCE OUTSIDE THE RECORD AND/OR NEW EVIDENCE SHOULD HAVE BEEN SUBMITTED TO THE COURT OF APPEALS FIRST.
{¶ 32} Davis unartfully repeats his arguments in support of his first two assignments. The trial court found that the facts alleged in the supporting affidavits were barred by res judicata by virtue of the fact that the issues could have been raised in the direct appeal.
{¶ 33} Appellant attempts to contort the finding of the trial court to mean that any new evidence should have been submitted on appeal. Davis then admits that this argument is itself absurd in that “new evidence cannot be submitted on appeal.”
{¶ 35} Therefore, we find Davis’ third assignment of error to be found not well-taken and denied.
CONCLUSION
{¶ 36} On consideration whereof, the judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24(A)(4).
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J.
Thomas J. Osowik, J.
Gene A. Zmuda, J.
CONCUR.