State v. JohnsonState v. Johnson
Attorneys for Plaintiff-Appellee
DAVID A. SAMS, Atty. Reg. #0055235, Post Office Box 40, West Jefferson, Ohio 43162
Attorney for Defendant-Appellant
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O P I N I O N
Rendered on the 18th day of June, 2010.
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BROGAN, J.
{¶ 1} This matter comes before us on two related appeals involving Greene County Common Pleas Court Case No. 08-CR-793. The first appeal, Greene App. No. 09-CA-16, is defendant Brian K. Johnson‘s direct appeal from his conviction and
I. Direct Appeal
{¶ 2} Johnson advances three assignments of error in his direct appeal. First, he contends his indictment is fatally defective because it omits the date of a prior domestic violence conviction. Second, he claims his guilty plea is invalid because the trial court failed to inform him of his right to jury unanimity. Third, he asserts that his maximum sentence is unlawful absent findings from the trial court under
{¶ 3} The record reflects that Johnson was indicted in November 2008 on a domestic violence charge. The indictment alleged that he had a prior domestic violence conviction in Xenia Municipal Court in case number 08 CRB 00043, but did not specify the date of that conviction. Due to the prior conviction, the indictment charged the current offense as a fourth-degree felony. Following a hearing, Johnson entered a guilty plea. The trial court imposed a statutory maximum prison sentence of eighteen months. This appeal followed.
{¶ 4} In his first assignment of error, Johnson contends
{¶ 5} We are unpersuaded by Johnson‘s argument for two reasons. First, he waived his objection to the alleged defect in his indictment by pleading guilty. See, e.g., State v. Moxley, Montgomery App. No. 22889, 2009-Ohio-3767, ¶9 (recognizing that “by entering a guilty plea, an accused admits guilt of a substantive crime and waives any alleged indictment defects for purposes of appeal“). Second, we specifically have rejected Johnson‘s argument that the date of a prior conviction must be included in an indictment when the fact of a prior conviction is an element of the offеnse. See, e.g, State v. Tooson, Montgomery App. No. 23290, 2009-Ohio-6269, ¶19-22.2 Accordingly, the first assignment of error is overruled.
{¶ 6} In his second assignment of error, Johnson claims his guilty plea is invalid because the trial court failed to inform him of his right to jury unanimity. We recently ruled, however, that a trial court is not required to advise a defendant of his right to a unanimous jury verdict. State v. Crowder, Montgomery App. No. 23184, 2009-Ohio-6389, ¶7-8, citing, inter alia, State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, ¶68. Accordingly, the second assignment of error is overruled.
{¶ 7} In his third assignment of error, Johnson asserts that his maximum
II. Denial of Post-Conviction Relief
{¶ 8} On July 29, 2009, Johnson filed a combined
{¶ 9} Petitions for post-conviction relief are governed by
{¶ 10} In his petition, Johnson raised several arguments. First, he claimed his indictment was defective because it omitted the date of his prior conviction. Second, he argued that his plea was invalid because (1) he was not informed of the defective indictment, (2) he was not informed that he was waiving his right to a unanimous jury, (3) he was “led to believe by trial counsel that he would receive probation if he pled,” and (4) his trial counsel had a conflict of interest. Third, Johnson asserted that he was innocent and that his attorney fаiled to advise him of the law.
{¶ 11} In support of his petition, Johnson provided two affidavits: one from himself and one from attorney William Daly. In his affidavit, Johnson averred that he had been represented in the trial court by attorney Scott Ashelman. Johnson further averred:
{¶ 12} “During the pendency of this case and prior to my plea, I informed Mr. Ashelman that I desired to maintain my innocence and proceed to trial;
{¶ 14} “With rеspect to the incident involving my sister, Stacy Johnson, and which became the subject of the charge of domestic violence for which I was indicted in the aforementioned case, while I did push her, I did not cause or attempt to cause any physical harm to her, nor did I threaten to, I had no intent to do so and I did not commit any act which was either calculated or likely to cause her any physical harm or the fear of such;
{¶ 15} “Mr. Ashelman did not advise me that pushing a person in the absence of physical harm does not necessarily аmount to causing or attempting to cause physical harm to another under Ohio law and that it is the intent of the person doing the pushing along with all of the facts and circumstances of the case which would determine whether such an act may or may not constitute an assault under Ohio law;
{¶ 16} “Neither did Mr. Ashelman advise me that my right to a trial by jury included the right not to be convicted unless all 12 jurors voted unanimously to convict me;
{¶ 17} “It has come to my attention that the indictment in my case was legally insufficient and had I known that such was the case I never would have entered a plea;
{¶ 18} “It has come to my attention that Mr. Ashelman, while representing me in the aforementioned case, may also have been serving as an Assistant City Attorney/Prosecutor for the City of Beavercreek, Ohio and may have prosecuted criminal cases in the Fairborn Municipal Court, both of which jurisdictions I believe
{¶ 19} “Had I known that Mr. Ashelman was working as a prosecutor in Greene County, Ohio at the same time that he was representing me in the same county on criminal charges, I would have objected to his representation of mе, I would not have listened to his advice to enter a plea and I would not have entered a plea with him as my attorney;
{¶ 20} “Had I been properly advised of my right not to be convicted unless by a unanimous jury verdict, the right not to be prosecuted and convicted unless first indicted by a grand jury, the right not to be prosecuted and convicted without a legally sufficient indictment and on the law of domestic violence, and specifically on the law relating to causing or attempting to cause physical harm as referenced above, I would have maintained my innocence and proceeded to trial[.]”
{¶ 21} In the second affidavit supporting Johnson‘s petition, attorney William Daly averred in relevant part as follows:
{¶ 22} “I have reviewed the case of State of Ohio v. Brian K. Johnson, Greene County Common Pleas Court Case No. 2008-CR-0793, wherein Mr. Johnson was represented through his plea and sentencing by Attorney Scott A. Ashelman;
{¶ 23} “I am personally acquainted with Attorney Ashelman and have practiced law in Greene County, Ohio, to include in the Fairborn Municipal Court and the Greene County Common Pleas Court;
{¶ 24} “During the time that Mr. Ashelman represented Mr. Johnson in the referеnced matter, Mr. Ashelman was employed as an assistant city attorney/prosecutor with the city of Beavercreek, Ohio, which is located in Greene
{¶ 25} “The Office of the Beavercreek City Attorney/Prosecutor by which Mr. Ashelman was so employed handles adult felony criminal cases filed by the Beavercreek Police Department in the Fairborn Municipal Court at the initial appearance/preliminary hearing stage;
{¶ 26} “After either a bindover or a dismissal for a direct future indictment as the case may be in any such adult felony сriminal case filed in the Fairborn Municipal Court by the Beavercreek Police Department, any such case so bound over or dismissed for a direct future indictment is then transferred to the Office of the Greene County Prosecuting Attorney for presentation to the Greene County Grand Jury for indictment and prosecution in the Court of Common Pleas of Greene County, Ohio;
{¶ 27} “I am personally aware that Attorney Ashelman has been both the Assistant Fairborn Municipal Court Prosecutor in the referenced manner while contemporaneously serving as аppointed defense counsel on the Greene County court-appointed attorney list[.]”
{¶ 28} The State opposed Johnson‘s petition. Its filing included affidavits from attorney Ashelman and Greene County Prosecutor Stephen Haller. In his affidavit, Ashelman averred:
{¶ 29} “1. I represented Brian K. Johnson, in Greene County Common Pleas Court No 08 CR 793, from November of 2008 through January of 2009.
{¶ 30} “2. During this time, I never represented the State of Ohio in any felony case in Greene County, Ohio, including in Fairborn Municipal Court and Xenia Municipal Court.
{¶ 32} “4. During this time, I never served as a Prosecutor in any capacity in Xenia Municipal Court, which is the jurisdiction where both Brian Johnson‘s instant case and his previous conviction are based.”
{¶ 33} In his affidavit, prosecutor Haller averred:
{¶ 34} “1. Chapter 309 of the Ohio Revised Code confers upon my office the power to prosecute all felony cases in Greene County, Ohio.
{¶ 35} “2. My office handles all felony cases, including preliminary hearings in both municipal courts in Greene County, Ohio. I do not contract with the municipal prosecutors to handle either preliminary hearings or arraignments.
{¶ 36} “3. To the best of my knowledge and belief, no prosecutor is present on behalf of my office at felony arraignments in either Xenia or Fairborn Municipal Court, as bond recommendations are made via letter to the court with the charging documents.
{¶ 37} “4. To the best of my knowledge and belief, from November of 2008 through January of 2009, Scott A. Ashelman was not appointed as a special prosecutor in my office.”
{¶ 38} On January 6, 2010, the trial court overruled Johnson‘s petition without a hearing. It found that “[t]he Defendant did not demonstrate a constitutional deprivation nor did the Defendant present competent, relevant, and material
{¶ 39} In his first assignment of error, Johnson contends the trial court erred in convicting him “of a crime for which he was not indicted and of which he is factually innocent.” He raises two arguments in support. The first involves his indictment‘s omission of the date of his prior conviction. The second involves his claim he did not cause or attempt to cause physical harm to the victim.
{¶ 40} We find both arguments to be unpersuasive. With regard to the first argument, we determined above the Johnson waived any defect in the indictment by pleading guilty and, in any event, that the date of a prior conviction need not be included in an indictment. We note too that the adequacy of Johnson‘s indictment is not a proper subject for post-conviction relief, as the issue was raised in his direct appeal. State v. Skatzes, Montgomery App. Nos. 22322, 22484, 2008-Ohio-5387, ¶6 (recognizing that in post-conviction proceedings res judicata bars any claim that was or could have been raised on direct appeal). As to the second argument, Jоhnson‘s claim of factual innocence is belied by the record. During his plea hearing, Johnson expressly admitted that he “did knowingly cause or attempt to cause physical harm to a family or household member[.]” (Plea transcript at 11-12). This directly contradicts the claim in his affidavit that he did not knowingly cause or attempt to cause physical
{¶ 41} In his second assignment of error, Johnson alleges ineffective assistance of counsel based on “the erroneous advice and omissions of trial counsel who had a conflict of interest and who failed to advise the client that the indictment was defective, that he was factually innocent and that the jury had to be unanimous to convict him[.]” This assignment of error alleges that attorney Ashelman (1) fаiled to disclose his alleged conflict of interest, (2) failed to inform Johnson that the indictment was defective, (3) failed to advise Johnson that he was factually innocent, and (4) failed to advise Johnson that the jury had to be unanimous.
{¶ 42} We are unpersuaded by Johnson‘s arguments. In our resolution of the direct appeal above, we determined that the State was not required to include the date of his prior conviction in the indictment and that Johnson was not required to be told about jury unanimity. Therefore, Johnson cannot demonstrate ineffective assistance of counsel even if, as alleged in his affidavit, counsel failed to inform him about these things.
{¶ 43} We are equally unpersuaded by Johnson‘s claim that his attorney provided ineffective assistance by failing to inform him that he was innocent. No facts in the record establish that Johnson in fact was innocent. In his affidavit, Johnson
{¶ 44} Finally, Johnson has not demonstrated ineffective assistance of counsel based on an alleged conflict of interest. “In order to satisfy a Sixth Amendment claim of ineffective assistance of counsel, appellant must demonstrate that an actual conflict of interest adversely affected his counsel‘s performance.” State v. Keith, 79 Ohio St.3d 514, 535, 1997-Ohio-367; see, also, State v. Buhrman (Sept. 12, 1997), Montgomery App. No. 96 CA 145 (recognizing that to establish ineffective assistance of counsel based on a conflict of interest, a defendant must show an actual conflict, rather than a potential conflict, and show that the conflict adversely affected counsel‘s representation).
{¶ 45} In finding no conflict of interest in the present case, the trial court evaluated the competing affidavits and opined that the credibility of the affidavits
{¶ 46} The Ohio Supreme Court has held that “in reviewing a petition for postconviction relief filed pursuant to
{¶ 47} In evaluating the credibility of affidavits in post-conviction proceedings, a court should consider all relevant factors, including “(1) whether the judge reviewing the post-conviction 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.” Id. at 285. “Depending on the entire record, one or more of these or other factors may be
{¶ 48} In the present case, the trial court did not explain why it questioned the credibility of the affidavits provided by Johnson. For purposes of his conflict-of-interest argument, the critical affidavit was from attorney William Daly.5 He averred that he had personal knowledge of Ashelman working simultaneously as both a Fairborn assistant municipal prosecutor and as court-appointed defense counsel. He further averred that Ashelman worked as an assistant city attorney/prosecutor for the City of Beavercreek while representing Johnson. Finally, he averred that the office of the Beavercreek city attorney/prosecutor handles initial appearances and preliminary hearings in adult felony cases in Fairborn Municipal Court.
{¶ 49} We see no readily apparent reason to question the veracity of the fоregoing averments made by a licensed attorney, an officer of the court. This does not mean, however, that the trial court was required to hold a hearing to determine whether Daly‘s allegations were true. “[N]ot all affidavits accompanying a
{¶ 50} Daly essentially alleged that Ashelman did some prosecutorial work in Fairborn Municipal Court while representing Johnson. Although Daly also averred that the Beavercreek city prosecutor‘s office performed some preliminary felony work, he did not assert that Ashelman personally had done any prosecutorial work in felony cases. For his part, Ashelman admitted in his affidavit that he had covered heаrings for a Beavercreek city prosecutor in Fairborn Municipal Court. Ashelman averred, however, that he represented the City of Beavercreek, not the State of Ohio, and that all of the cases were traffic offenses or other misdemeanors. He stated that he never did prosecutorial work in any felony case while representing Johnson and that he never did any prosecutorial work in Xenia Municipal Court, which is where Johnson‘s case was “based.” Nothing in Daly‘s affidavit states otherwise. In short, a close reading of the affidavits of Daly and Ashelman reveals that they do not conflict on any material points. Read together, both affidavits support a finding that Ashelman performed some misdemeanor work on behalf of the City of Beavercreek in Fairborn Municipal Court while he was defending Johnson against charges brought by the State of Ohio in Greene County Common Pleas Court.
{¶ 51} Having reviewed the parties’ affidavits, we find no evidence of an actual
{¶ 52} Even assuming, arguendo, that a real conflict did exist, post-conviction relief is unwarranted unless the conflict adversely affected Ashelman‘s performance in Johnson‘s case. Keith, 79 Ohio St.3d at 535. The record contains no evidence to support such a finding. Ashelman negotiated a plea deal that required Johnson to plead guilty in exchange for the State‘s recommendation of community control. Although the trial court ultimately declined tо follow the State‘s recommendation, we
{¶ 53} In his third assignment of error, Johnson contends the trial court erred in refusing to allow him to withdraw his guilty plea “to a defеctive indictment under circumstances which displayed his factual innocence and a conflict of interest with trial counsel who induced his plea by erroneous advice and omissions.”
{¶ 54} We note that this assignment of error is directed toward Johnson‘s
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FAIN, J., and FROELICH, J., concur.
Stephen K. Haller
Elizabeth A. Ellis
David A. Sams
Hon. J. Timothy Campbell