Lead Opinion
{¶ 2} On October 7, 2002, Hill was indicted on one count of theft and one count of receiving stolen property. Three days later, Hill was also indicted on one count of burglary as a third degree felony, and one count of burglary as a fourth degree felony. As a result of a plea agreement, Hill pled guilty to one count of receiving stolen property and one count of burglary as a third degree felony. The remaining counts against Hill were dismissed. On March 18, 2003, Hill was sentenced to two years of imprisonment. On October 8, 2003, Hill filed a petition for post-conviction relief, which the trial court denied on November 14, 2003. Hill has filed this delayed appeal of that judgment, raising the following as his sole assignment of error.
{¶ 3} "A Plea must be withdrawn to correct a manifest injustice when it is not intelligently, knowingly or voluntarily given."
{¶ 4} Hill argues that the trial court should have granted his motion to vacate his plea and his petition for post-conviction relief because he offered evidence that he entered into the plea due to false promises made to him by his trial attorney. We disagree.
{¶ 5} A motion to withdraw a guilty plea after sentence has been imposed will only be granted to correct a manifest injustice. Crim.R. 32.1. A plea must be knowingly, intelligently and voluntarily made in order to abide by the U.S. and Ohio Constitutions. State v. Engle
(1996),
{¶ 6} Hill asserts that he should be allowed to withdraw his plea because it was less than knowing and voluntary. In support of his argument, Hill's sole assertion is that his trial counsel misinformed him that he would receive time served and that his conviction could possibly be expunged later. However, these assertions by Hill and his parents conflict with the plea form and the transcript of the plea hearing. The plea form, which Hill initialed, provided that the State was recommending a two year prison sentence on the charges. Additionally, at the plea hearing, the trial court read to Hill the State's recommendation of a two year sentence and Hill indicated his understanding of that possible prison sentence. Further, Hill indicated that he was entering the plea voluntarily and that no one had forced him to enter the plea, but rather that it was his own decision. Having reviewed the transcript and the record, we cannot say that Hill did not subjectively understand that a possibility existed that his plea would result in his receiving a two year prison sentence. Therefore, we find that Crim.R. 11(C) was substantially complied with and that Hill's plea was knowingly, intelligently, and voluntarily entered. The trial court did not err in determining that a manifest injustice had not occurred and in denying Hill's motion to withdraw his plea post sentence.
{¶ 7} As for Hill's petition for post-conviction relief, in order to succeed on such a petition, the petitioner must show that a constitutional violation occurred at the time of his trial and conviction. State v. Hill (Nov. 21, 1997), Hamilton App. No. C-961052. Id. The petitioner in a post-conviction relief proceeding bears the initial burden of submitting evidentiary documents with sufficient facts to demonstrate a constitutional deprivation, such as ineffective assistance of counsel. State v. Jackson (1980),
{¶ 8} Rather than automatically being granted a hearing on the petition, the trial court must determine from an analysis of the petition and its supporting affidavits whether substantive grounds for the relief are present, meriting a hearing. State v. Lawson (1995),
{¶ 9} In assessing affidavits that have been submitted with a post-conviction relief petition, the court should give them due deference but may use its discretion to weigh the credibility of the affidavits in deciding whether to accept the statements as true. State v. Calhoun
(1999),
{¶ 10} In Calhoun, the Ohio Supreme Court also set forth the following factors for the trial court to consider in determining the credibility of affidavits filed in support of petitions, "(1) whether the judge reviewing the postconviction relief petition also presided at the trial, (2) whether multiple affidavits contained 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, * * * (5) whether the affidavits contradict evidence proffered by the defense at trial, [and (6) whether] sworn testimony in an affidavit [is] contradicted by evidence in the record by the same witness, or [is] so internally inconsistent" that the credibility of that testimony is weakened.
{¶ 11} After a review of the evidence, we cannot find that the trial court erred in denying Hill's petition for post-conviction relief without holding a hearing. Applying the Calhoun standard, we find the trial court was correct in failing to assign much credibility to the affidavits in support of Hill's petition. The affidavits Hill submitted contained very similar language as if they had been formulated by the same individual. Further, the affidavits are from Hill and his relatives, specifically his parents. The affidavits also contradict Hill's statement at the plea hearing that he was entering the plea voluntarily. Moreover, the trial court judge that considered the post-conviction relief motion and the motion to vacate his plea was the same judge that presided over the plea hearing and final disposition. These factors support the trial court's determination that the affidavits in support of Hill's petition were not credible.
{¶ 12} In the instant case, Hill argues that his attorney promised him that he would be sentenced to time served and not serve any additional prison time if he pled guilty. Further, Hill also claims his trial counsel informed him that he could have these convictions expunged at a later date.
{¶ 13} We evaluate ineffective assistance of counsel arguments in light of the two prong analysis set forth in Strickland v. Washington
(1984),
{¶ 14} In evaluating claims by defendants that a counsel's misinformation led to their plea, courts have said that a counsel's erroneous advice about the consequences of the plea does not rise to the level of ineffectiveness. State v. Xie (1992),
{¶ 15} The plea form that Hill initialed clearly stated that the State was recommending a two year sentence of incarceration. Thus, Hill was aware that the State was seeking a prison sentence despite his plea. Additionally, at the plea hearing, Hill indicated that he was completely satisfied with his attorney's services and that his counsel had advised him of his rights and answered all of his questions. Hill continued on to state that he was entering the plea voluntarily and that no one had forced him to make the agreement. Moreover, at the plea hearing the trial court read the plea agreement to Hill, including that the State was recommending a two year prison sentence. Hill indicated that this was his understanding of the agreement. The evidence does not indicate that Hill's counsel prevented Hill from knowingly and voluntarily entering his plea. Therefore, Hill failed to provide evidence of a constitutional deprivation in the entry of his guilty plea in this matter. The trial court was proper in dismissing the petition without a hearing.
{¶ 16} Hill's assignment of error is without merit and overruled. The judgment of the trial court is affirmed.
Wolff, J., concurs.
Concurrence Opinion
{¶ 17} In State v. Calhoun (1999),
{¶ 18} Calhoun involved a conviction based on a guilty plea, which the defendant attacked on a claim that his attorney had coerced him into entering a guilty plea. The contention was supported by his own and his mother's affidavits. The trial court overruled the defendant's petition without a hearing, finding that no substantive grounds for relief were portrayed. The court of appeals reversed, holding that, like a Civ.R. 56(C) summary judgment proceeding, the allegations in the affidavits filed in support of the motion must be credited and a hearing was therefore required.
{¶ 19} The Supreme Court rejected the analogy to a summary judgment proceeding and reversed the appellate court. The Court held that "a trial court should give due deference to affidavits sworn to under oath and filed in support of the petition, but may, in the sound exercise of discretion, judge their credibility in determining whether to accept the affidavits as true statements of fact." Id. The criteria Calhoun cited for determining that proposition are set out in Judge Donovan's opinion.
{¶ 20} The allegation in Calhoun that the defendant's lawyer had coerced him into entering a guilty plea, if true, would undermine the voluntary nature of the plea he entered. It could also overcome the effect of the Crim.R. 11(C) colloquy which accompanied the plea, because a defendant might feel compelled to do what his attorney had told him to do, the court's inquiries notwithstanding. However, as the court also pointed out in Calhoun, where "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." Id., citing State v. Perry (1967),
{¶ 21} The affidavits which Defendant-Appellant presented in support of his petition merely stated that his attorney had "promised" him that he would be sentenced to time served and that his conviction could later be expunged. Such a "promise" is no more than a predictive judgment. A defendant's choice to rely on that judgment and enter a plea of guilty or no contest portrays only misplaced reliance, not a matter such as coercion which affects the voluntary nature of the plea that was entered. Therefore, even if true, the fact that the alleged "promise" was made and that the defendant relied on it does not rise to the level of a constitutional violation.
{¶ 22} A distinction should be made between an attorney's predictive "promises" of this kind and those which undermine the voluntary quality of the defendant's plea, which the court is required by Crim.R. 11(C)(2)(a) to determine after first addressing the defendant for that purpose. Coercion is one such matter. Another is corruption of the court's process. Absent claims that such things occurred, supported by the necessary affidavits, a defendant's acknowledgment in the Crim.R. 11 colloquy that no promises were made to induce his plea is not rebutted by his subsequent claim that his guilty or no contest plea was involuntary because his attorney had told him that a less onerous sentence would be imposed than was imposed. Misplaced reliance, standing alone, does not rise to the level of a constitutional violation.