STATE OF OHIO v. ANJUAN C. HENRY
Appellate Case No. 2016-CA-78
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
September 1, 2017
[Cite as State v. Henry, 2017-Ohio-7427.]
WELBAUM, J.
Trial Court Case No. 1999-CR-584; (Criminal Appeal from Common Pleas Court)
Rendered on the 1st day of September, 2017.
ANDREW P. PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorney, Clark County Prosecutor‘s Office, 50 East Columbia Street, Fourth Floor, Springfield, Ohio 45501
Attorney for Plaintiff-Appellee
ANJUAN C. HENRY, Inmate No. 401-154, London Correctional Institution, P.O. Box 69, London, Ohio 43140
Defendant-Appellant-Pro Se
I. Facts and Course of Proceedings
{¶ 2} On November 1, 1999, the Clark County Grand Jury indicted Henry on two counts of knowingly selling or offering to sell crack cocaine in an amount greater than five grams but less than ten grams, in violation of
{¶ 3} The jury returned guilty verdicts on both counts of drug trafficking and one count of possession of crack cocaine with a major drug specification. Dkt. 15-16, 25. Henry was sentenced on September 22, 2000. Dkt. 25. On appeal, we reversed Henry‘s convictions and remanded the case for further proceedings consistent with our Opinion. Dkt. 32; State v. Henry, 2d Dist. Clark No. 2000-CA-80, 2002 WL 125717 (Feb. 1, 2002).
{¶ 5} On April 5, 2016, Henry filed a document entitled “2953.21 Delayed petition to vacate no contest plea and set aside judgment of conviction” in Case No. 99-CR-584. Dkt. 58. The first page of his petition stated “Petitioner, Anjuan Henry, petitions this court for post conviction relief pursuant to
In Feb of 2016, my ex-fiancée and children‘s mother, Erica Bibbs, did inform me that leading up to and during my June 2003 jury trial for possession on [sic] cocaine, she was having an affair with my trial attorney.
She was reluctant to provide the affidavit attached to the motion for leave because she said it would make her “look bad” and also inquired as to whether his attorney could “get in trouble” if this came out.
I Erica Bibbs, aver and attest to the following . . . before and during my ex fiancé and my children‘s father, (Anjuan Henry), June 2003 jury trial, I was engaged in a romantic relationship with his attorney.
Dkt. 58
{¶ 7} On April 20, 2016, Henry filed a motion for summary judgment on his petition. Dkt. 59. On May 23, 2016, Henry filed a “Motion For Leave To Amend Petition To Include Supplemental Affadavit.” Dkt. 60. Attached to this motion was Henry‘s affidavit dated May 16, 2016. The affidavit stated, in pertinent part:
In April of 2013, my ex-fiancée and I began communicating on an intimate level again.
We both came to an agreement to try to repair our relationship. We‘ve been successful in that endeavour [sic] for the past few years.
In Feb of 2016, my ex-fiancée Erica Bibbs, told me that, years ago she did something that she regrets, and that she was tired of living with the guilt of it. That‘s when, for the first time, she revealed the affair she had with my trial attorney while he was representing me.
{¶ 8} On August 8, 2016, Henry filed a “Motion To Amend Petition To Include Supplemental Argument.” Dkt. 61. Henry asked the trial court to consider the additional authority of Disciplinary Counsel v. Owen, 142 Ohio St.3d 323, 2014-Ohio-4597, 30 N.E.3d 910. Dkt. 61.
{¶ 9} The trial court denied Henry‘s petition on November 8, 2016, stating (Dkt.
This matter is before the Court on the pro se motion of the defendant for leave to file a delayed petition to vacate a no contest pleas and set aside the judgment. Upon review of the arguments and the record, the Court finds the motion is not well taken and the same is DENIED.
{¶ 10} Henry appealed from the trial court‘s November 8, 2016 decision. Dkt. 63. In his appeal, Henry filed a Motion to Stay and Remand the cause because the trial court failed to issue findings of fact and conclusions of law in denying his petition for post-conviction relief. In his motion, Henry referenced a writ of mandamus he had filed to require the trial court to issue the findings of fact and conclusions of law. On January 10, 2017, we requested that the parties file briefs addressing whether Henry‘s April 5, 2016 filing was a request for post-conviction relief or some other post-sentence motion and, if the filing was a petition for post-conviction relief, whether any exceptions apply to the requirement that the trial court issue findings of fact and conclusions of law when denying the petition.
{¶ 11} On March 2, 2017, we issued an Order stating, in pertinent part:
Accordingly, Henry‘s motion to stay and remand is SUSTAINED. This matter is STAYED until further order of court. The case is REMANDED. The trial court is ORDERED to take one of the following two actions within 20 days of this Order: 1) issue findings of fact and conclusions of law on Henry‘s April 5, 2016 “2953.21 Delayed Petition to vacate no contest plea and set aside judgment of conviction;” or 2) issue an entry stating the reason(s) that findings of fact and conclusions of law are
not required on Henry‘s April 5 filing.
{¶ 12} The trial court issued an Entry in response to our March 2, 2017 Order. Dkt. 65. In its Entry, the trial court stated, in pertinent part:
This matter had been before the Court on the pro se motion of the defendant for leave to file a delayed petition to vacate a [sic] no contest pleas and set aside the judgment. This is a motion to withdraw a plea, not a petition for post conviction relief. A ruling on a motion to withdraw a plea does not require the court to file a finding of facts and conclusion of law.
* * *
In ruling on a motion to withdraw a plea, the court is not required to file a finding of facts. However, in reviewing the court‘s records, the court found that the defendant was represented by a competent and experienced trial attorney. The defendant indicated in his written plea that he was satisfied with the advice and representation his attorney had given him, that he understood everything in the plea including the constitutional rights he was waiving by entering into the plea, that no threats or promises, other than what had been placed on the record, had been made to the defendant to get him to enter into the plea, and that he was giving up those rights by entering the plea.
In the defendant‘s motion and supplements to the motion, the defendant claimed ineffective assistance of counsel. The main basis is that his attorney was engaged in a sexual relationship with the defendant‘s girl friend at the time he was representing the defendant. Further, the
defendant was not aware of that relationship for a number of years. The defendant attempts to substantiates [sic] this claim with a self-serving affidavit. Any other grounds for the motion should have been raised in the defendant‘s unsuccessful appeal, and would now be barred by res judicata.
Upon review of the arguments and the record, the Court finds the motion is not well taken and the same is DENIED.
{¶ 13} Henry filed a new notice of appeal from the trial court‘s March 2, 2017 Entry.
II. The Trial Court Erred In Construing Henry‘s Petition For Post-Conviction Relief As A Motion To Withdraw A Plea
{¶ 14} Henry‘s sole assignment of error states:
THE TRIAL COURT VIOLATED APPELLANT‘S 14TH AMENDMENT RIGHT TO EQUAL PROTECTION OF THE LAW, WHEN IT CLASSIFIED APPELLANT‘S 2953.21 PETITION AS A CRIMINAL RULE 32.1 MOTION, AND FAILED TO ISSUE FINDINGS OF FACTS AND CONCLUSIONS OF LAW.
{¶ 15} Henry contends that his April 5, 2016 filing was a petition for post-conviction relief pursuant to
{¶ 16} In his April 5, 2016 filing, Henry relied on affidavits that were outside the record and specifically requested relief under
{¶ 17} Although the trial court erroneously construed Henry‘s April 5, 2016 filing as a motion to withdraw a plea rather than a petition for post-conviction relief, our review does not end here. Rather, if the trial court provided sufficient findings of fact and conclusions of law, although not labeled as such, to support the dismissal of the petition without a hearing under
In ruling on a motion to withdraw a plea, the court is not required to file a finding of facts. However, in reviewing the court‘s records, the court found that the defendant was represented by a competent and experienced trial attorney. The defendant indicated in his written plea that he was satisfied with the advice and representation his attorney had given him, that he understood everything in the plea including the constitutional rights he was waiving by entering into the plea, that no threats or promises, other than what had been placed on the record, had been made to the defendant to get him to enter into the plea, and that he was giving up those rights by entering the plea.
In the defendant‘s motion and supplements to the motion, the defendant claimed ineffective assistance of counsel. The main basis is that his attorney was engaged in a sexual relationship with the defendant‘s girl friend at the time he was representing the defendant. Further, the defendant was not aware of that relationship for a number of years. The defendant attempts to substantiates [sic] this claim with a self-serving affidavit.
{¶ 19} The trial court‘s analysis of whether his plea was knowing and voluntary, while relevant to a motion to withdraw a plea, is less relevant when considering Henry‘s
{¶ 20} The trial court also noted that Henry tried to substantiate his claim of ineffective assistance of counsel “with a self-serving affidavit.” Id. We recently explained the analysis a trial court may undergo when faced with a petition for post-conviction relief that relies on allegedly self-serving affidavits:
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
R.C. 2953.21 . [State v. Kapper, 5 Ohio St.3d 36, 38, 448 N.E.2d 823 (1983)]; State v. Perkins, 2d Dist. Montgomery No. 24397, 2011-Ohio-5070, ¶ 15. “Though we recognize that every affidavit submitted by a post-conviction relief petitioner is to some degree or another ‘self-serving,’ such affidavits should not lightly be deemed false as they are by definition a statement that the affiant has sworn to be truthful and made under penalty of perjury.” State v. Padgett, 2d Dist. Montgomery No. 17658, 1999 WL 1127398, * 3 (Dec. 10, 1999), citing Calhoun at 284, 714 N.E.2d 905. Nevertheless, “the trial court may, under appropriate circumstances in postconviction relief proceedings, deem affidavit testimony to lack credibility without first observing or examining the affiant.” Calhoun at 284, 714 N.E.2d 905.
{¶ 21} In assessing the credibility of affidavits, the Supreme Court has provided
(1) whether the judge reviewing the postconviction relief petition also presided at the trial, (2) whether multiple affidavits contain nearly identical language, or otherwise appear to have been drafted by the same person, (3) whether the affidavits contain or rely on hearsay, (4) whether the affiants are relatives of the petitioner, or otherwise interested in the success of the petitioner‘s efforts, and (5) 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, 86 Ohio St.3d at 285, citing State v. Moore, 99 Ohio App.3d 748, 754-756, 651 N.E.2d 1319 (1st Dist.1994).
{¶ 22} “[O]ne or more of these or other factors may be sufficient to justify the conclusion that an affidavit asserting information outside the record lacks credibility.” 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.
{¶ 23} Arguably, one or more of the Calhoun factors may apply to discount the credibility of both of Henry‘s two supporting affidavits. However, the trial court failed to provide findings of fact and conclusions of law to explain why either or both of the affidavits were self-serving. Further, the trial court referred to affidavit in the singular,
{¶ 24} As we noted in Clark, it is not this court‘s place to judge the credibility of the affidavits or to rule on Henry‘s petition. Clark at ¶ 23. Rather, “the decision to grant or dismiss the petition with or without a hearing falls within the sound discretion of the trial court.” Id., citing State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 45, 58. On remand, the trial court will have an opportunity to exercise this discretion when it considers Henry‘s April 5, 2016 filing as a petition for post-conviction relief. Henry‘s sole assignment of error is sustained.
III. Conclusion
{¶ 25} The judgment of the trial court is reversed and the cause is remanded for the trial court to review Henry‘s petition for post-conviction relief under
FROELICH, J. and TUCKER, J., concur.
Copies mailed to:
Andrew P. Pickering
Anjuan C. Henry
Hon. Richard J. O‘Neill