581 N.E.2d 614 | Ohio Ct. App. | 1990
Defendant-appellant Jon W. Fuller appeals from the dismissal of his petition for post-conviction relief. Although we reject all of his other assignments of error, we agree with Fuller that he was effectively deprived of the assistance of counsel during his direct appeal from his conviction and sentence, following a guilty plea, for the offenses of involuntary manslaughter and robbery. Our conclusion is based upon the fact that Fuller, an indigent, requested, however inartfully, the appointment of a different lawyer to represent him in connection with his direct appeal, but his trial lawyer was appointed to represent him on appeal. Therefore, Fuller, who assigned as error, pro se, the ineffective assistance of trial counsel, was effectively deprived of the assistance of appellate counsel to argue that assignment of error, since his trial counsel could not be expected to argue effectively that he had been ineffective as trial counsel. Accordingly, we will reinstate Fuller's direct appeal, being case No. CA 2223 in this court, and we will reverse, in part, the trial court's denial of Fuller's petition for post-conviction relief, and remand this cause to the trial court with instructions to appoint appellate counsel, other than Fuller's trial counsel, to represent him in connection with his appeal.
Fuller subsequently pled guilty to involuntary manslaughter and to robbery. The charge of aggravated robbery was dismissed. The trial court accepted Fuller's pleas, entered judgments of conviction, and sentenced Fuller accordingly.
Fuller appealed from his convictions and sentences, contending that there was prejudicial error in the proceedings in which Fuller's guilty pleas were accepted, as a result of which his pleas were not voluntarily made. This court, in case No. CA 2223, overruled Fuller's assignment of error, and affirmed his convictions.
In connection with that direct appeal, Fuller moved the trial court for the appointment of counsel to represent him in connection with his appeal. This motion was in the form of a typed motion and memorandum. Below the text of his motion, immediately to the left of his signature, there is written in hand, in blue ink: "I don't want the same lawyer." The trial court appointed James N. Griffin, who was Fuller's trial counsel, to represent him on appeal. *352
Griffin filed an Anders brief in this court, in which he found no proper basis for a reversal of the judgment, but in which he characterized Fuller's grievances as being a contention that his plea was not voluntarily made because the trial court had not fully and adequately explained to Fuller the nature of the charges to which he pled guilty, and had not adequately explained to Fuller the constitutional rights that he would be waiving by pleading guilty.
Fuller filed his own pro se brief in which he assigned as error, among other things, the ineffective assistance of trial counsel.
The result of Fuller's direct appeal was an affirmance.
Fuller filed this petition for post-conviction relief, along with his own supporting affidavit. The state moved to dismiss Fuller's petition for post-conviction relief. The trial court, without a hearing, dismissed the petition. From the dismissal of his petition for post-conviction relief, Fuller appeals.
Common to all of these assignments of error is Fuller's contention that his pleas of guilty are defective because they were not knowingly and voluntarily made. In State v. Kapper
(1983),
Although Fuller attached to his affidavit what appear to be copies of certain medical and psychiatric records, these were not authenticated, related to subjects with names different than Fuller, and were not entirely self-explanatory.
We have reviewed the transcript of the plea proceedings, and we conclude that it does not support Fuller's contention that his plea was not knowingly and voluntarily made. We also conclude that Fuller has failed to support his petition with sufficient documentation, other than his own affidavit, to satisfy the test set forth in State v. Kapper, supra.
Fuller's First through Tenth, Twelfth, Fourteenth, and Sixteenth Assignments of Error are overruled.
"Counsel for petitioner-appellant was ineffective at sentencing hearing in that he did not say anything in my favor and did not fully disclose to the court that I had done absolutely nothing."
We conclude that this assignment of error, also, is controlled by the principle set forth in State v. Kapper,supra. In Kapper, the court was concerned with the ineffective assistance of counsel during the plea proceedings. In Fuller's Thirteenth Assignment of Error, he is asserting the ineffective assistance of counsel at sentencing, following the plea proceedings. We have reviewed the transcript of the sentencing proceedings, and it does not support Fuller's contention of ineffective assistance of counsel. Since Fuller has not produced any documentary evidence in support of this contention other than his own affidavit, we conclude that the trial court was not required to hold a hearing, for all of the reasons set forth inState v. Kapper, supra.
Fuller's Thirteenth Assignment of Error is overruled.
"Petitioner-appellant alleges that trial judge, Judge Henderson, showed prejudicial bias by reading and being influenced in his sentencing decision by my co-defendant's statement, and that said statement was partially coerced by detectives who conducted the interrogation of Devonna [sic] Rudd."
The record does not affirmatively establish that the trial court considered the written statement, to police officers, of Fuller's co-defendant, Devona Rudd. However, if the trial court did consider that written statement, including the reference therein to Fuller's having told Rudd that he had previously killed two men, we find no error. A trial court is not restricted by the rules of evidence with respect to those matters that it may consider in determining the sentence to impose. Fuller has not cited any authority for the proposition that a trial court is restricted in its consideration, for sentencing purposes, of a written statement made by a co-defendant.
Fuller's Fifteenth Assignment of Error is overruled.
"The court did not explain the nature of the charges to me, the court did not ascertain to petitioner-appellant what he was pleading to. Petitioner-appellant did not plead to the elements of the alleged crime. The guilty plea is void." *356
This same argument was made to this court in Fuller's direct appeal. We considered and rejected this argument in the direct appeal, State v. Fuller (Apr. 14, 1987), Clark App. No. CA 2223, unreported, 1987 WL 10159. Consequently, this assignment of error is barred by res judicata.
Fuller's Seventeenth Assignment of Error is overruled.
"Petitioner-appellant claims that he was denied effective assistance of counsel on direct appeal, which denied him the right to a direct appeal as his constitutional right."
In connection with his direct appeal, Fuller moved for the appointment of appellate counsel, and supported his motion with an affidavit of indigency. Below the typed text of his motion, to the left of his signature, there is handwritten, in blue ink, the words: "I don't want the same lawyer."
In an entry, the trial court sustained Fuller's motion for the appointment of counsel to represent him on appeal, and appointed James Griffin, his trial counsel, to be his counsel on appeal.
Griffin filed an Anders brief, and Fuller filed, pro se, his own brief on direct appeal, assigning as error, among other things, the ineffective assistance of counsel at trial.
Although an attorney appointed as appellate counsel who is not the same as trial counsel is presumptively capable of making the argument, on appeal, that the defendant was denied the effective assistance of counsel at trial, when the appointed appellate counsel is the same attorney who represented the defendant at trial, he must be presumed incapable of making an effective argument that the defendant was denied the effective assistance of counsel at trial. See State v. Cole (1982),
When a defendant is totally deprived of the assistance of counsel during the appellate phase of criminal proceedings against him, that is a violation of his right to counsel under the
Where, as here, an indigent criminal defendant decides to argue on appeal that he has been deprived of the effective assistance of trial counsel, and has made a request to the trial court that a lawyer, other than his trial counsel, be appointed to represent him on appeal, we conclude, based upon *357 Penson v. Ohio, supra, that it is a violation of his
Fuller's Eleventh Assignment of Error is sustained.
Judgment accordingly.
WOLFF, P.J., and KERNS, J., concur.
JOSEPH D. KERNS, J., retired, of the Second Appellate District, sitting by assignment.