STATE OF OHIO v. RAYMOND A. MILLER
CASE NO. 2019-G-0189
IN THE COURT OF APPEALS, ELEVENTH APPELLATE DISTRICT, GEAUGA COUNTY, OHIO
July 22, 2019
2019-Ohio-2974
TIMOTHY P. CANNON, J.
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
STATE OF OHIO, : O P I N I O N
Plaintiff-Appellee, :
CASE NO. 2019-G-0189
- vs - :
RAYMOND A. MILLER, :
Defendant-Appellant. :
Civil Appeal from the Geauga County Court of Common Pleas.
Case No. 2017 C 000001.
Judgment: Affirmed in part and reversed in part; remanded.
Jаmes R. Flaiz, Geauga County Prosecutor, and Nicholas A. Burling, Assistant
Prosecuting Attorney, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH
44024 (For Plaintiff-Appellee).
Raymond A. Miller, pro se, PID: A702-482, Lorain Correctional Institution, 2075 South
Avon-Belden Road, Grafton, OH 44044 (Defendant-Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Raymond A. Miller, appeals an entry of the Geauga County Court
of Common Pleas, denying his Petition to Vacate or Set Aside Judgment of Conviction or
Sentence. The judgment is affirmed in part and reversed in part, and the matter is
remаnded for further proceedings consistent with this opinion.
{¶2} On July 12, 2017, pursuant to a plea agreement, appellant pled guilty to five
felony charges and was sentenced to twenty years in prison. Following the sеntencing
hearing, appellant filed a pro se motion to withdraw his guilty plea, alleging ineffective
assistance of counsel, which the trial court denied.
{¶3} Appellant noticed a direct appeal from the judgment of conviction and the
denial of his motion to withdraw his guilty plea. State v. Miller, 11th Dist. Geauga No.
2017-G-0136, 2018-Ohio-4379. In his first assignment of error, appellant asserted he
was deprived of his constitutional right to the effective assistance of counsel. Id. at ¶12.
Specifically, he argued ineffective assistance due to counsel’s (1) lack of motion practice
and waiver of appellant’s speedy trial rights; (2) failure to alert the trial court of a “near”
error regarding postrelease control; and (3) informing apрellant that his wife/co-defendant
would be charged with contempt of court if she refused to testify against him, which
resulted in appellant feeling “threatened” and “obligated” to plead guilty. Id. at ¶16-18.
{¶4} This court affirmed the trial court’s judgments on October 29, 2018. Id. at
¶39. We concluded appellant’s first two arguments under his ineffective assistance of
counsel claim were without merit. Id. at ¶16-17. With regard to the third argument, we
held, in pertinent part, as follows:
Finally, the merits of this argument, and appellee’s response, largely
rely on allegеd conversations that took place between appellant and
defense counsel, as well as agreements allegedly made by
appellant’s wife as part of her own plea agreement. These types of
matters that are de hors the trial сourt record cannot be addressed
in this appeal. An allegation that appellant’s guilty plea was not
voluntary because defense counsel allegedly ‘threatened’ him to
plead guilty during a private conversation must be raised in a petition
for post-conviction relief.
Id. at ¶18, citing State v. Price, 11th Dist. Trumbull No. 2013-T-0088, 2015-Ohio-944, ¶29,
and State v. Hathaway, 2d Dist. Greene No. 2014-CA-13, 2015-Ohio-5488, ¶18.
{¶5} On November 26, 2018, appellant appealed this court’s decision to the
Supreme Court of Ohio. The Supreme Court declined jurisdiction on Februаry 6, 2019.
{¶6} On November 8, 2018, prior to filing his appeal in the Supreme Court,
appellant petitioned the trial court, pro se, in a document entitled, “Petition to Vacate or
Set Aside Judgment of Conviction or Sеntence (Evidentiary Hearing Requested).” The
first paragraph explains that appellant “petitions this Court for Post-Conviction relief
pursuant to
voidable under the United States and/or Ohio Constitution. Petitioner sets forth below
operative facts to establish substantive grounds for relief,
set forth two claims for relief:
[1.] Mr. Miller’s Conviction and Sentence are void and/or voidable.
Mr. Millеr was denied his Constitutional Rights to Effective
Assistance of Counsel when defense counsel coerced Mr. Miller into
entering a guilty plea with the continuous threats of Miller’s wife/co-defendant testifying against Miller. This is a violation of Mr. Miller’s
Sixth Amendment, U.S. Constitution; Section 10, Article 1, Ohio
Constitution, right to effective assistance of counsel.
[2.] Mr. Miller was denied his constitutional rights to effective
assistance of counsel as defense counsel failed to investigate and/or
challengе the state’s case. Sixth Amendment, U.S. Constitution;
Section 10, Article 1, Ohio Constitution; Compulsory Process and his
Fifth and Fourteenth Amendment, U.S. Constitution; Section 16,
Article 1, Ohio Constitution; Due Process.
{¶7} The trial court denied the petition on January 10, 2019, stating:
Defendant makеs several arguments alleging ineffective assistance
of counsel and error on the part of the court in denying his motion
to withdraw his guilty plea. The Court finds that Defendant raised
these issues in his appeal to the 11th District Court of Appeals, the
Court of Appeals affirmed the Trial Court’s decision. Defendant has
now appealed his case to the Ohio Supreme Court.
Unless the matter is remanded by an appellate court, this Court
does not have jurisdiction to consider the issues raised by the
Defendant.
{¶8} This matter is now before us upon appellant’s pro se appeal, in which he
raises the following two assignments of error:
[1.] The trial court abused its discretion in denying Mr. Miller’s timely
filed postconviction relief petition pursuant to
R.C. 2953.21 [for] thereasons that Mr. Miller raised these issues on direct aрpeal (principle
of res judicata)[.] This violated Mr. Miller’s right under the Sixth
Amendment to the United States Constitution and Article One,
Section Ten of the Ohio Constitution. [sic.]
[2.] The trial court abused its discretion in denying Mr. Miller’s timely
filed petition for postconviction relief pursuant to
R.C. 2953.21 for thereasons that the trial court lacked jurisdiction to consider Mr. Miller’s
instant postconviction relief petition due to Mr. Miller’s direct appeal
was pending in The Supreme Court of Ohio. [sic.]
{¶9} Appellant argues the trial court erred in denying his postconviction petition.
The trial court dеnied appellant’s petition without a hearing due to an alleged lack of
jurisdiction and because it determined his arguments were barred by the doctrine of res
judicata. We review jurisdictional issues de novo. State v. Rue, 11th Dist. Trumbull No.
2018-T-0092, 2019-Ohio-1720, ¶5. Application of the doctrinе of res judicata is also
reviewed de novo. State v. Miller, 11th Dist. Lake No. 2018-L-055, 2018-Ohio-5192, ¶14;
but see State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, ¶25 (citations omitted)
(noting that courts have the discretion not to apply the doctrine of res judicata “in particular
situations as fairness and justice require”).
{¶10}
part:
(A)(1)(a) Any person who has been convicted of a criminal offense *
* * and who claims that there was such a denial or infringement of
the person’s rights as to render the judgment void or voidable under
the Ohio Constitution or the Constitution of the United States * * *
may file a petition in the court that imposed sentence, stating the
grounds for relief relied upon, and asking the court to vacate or set
aside the judgment or sentence or to grant other appropriate relief.
The petitioner may file a supporting affidavit and other documentary
evidence in support of the claim for relief.
* * *
(D) The court shall consider a petition that is timely filed undеr
division (A)(2) of this section even if a direct appeal of the judgment
is pending. Before granting a hearing on a petition filed under
division (A) of this section, the court shall determine whether there
are substantive grоunds for relief. In making such a determination,
the court shall consider, in addition to the petition, the supporting
affidavits, and the documentary evidence, all the files and records
pertaining to the proceedings against the petitioner[.] * * * If the court
dismisses the petition, it shall make and file findings of fact and
conclusions of law with respect to such dismissal. * * *
* * *
(F) Unless the petition and the files and records of the case show the
petitioner is not entitled to reliеf, the court shall proceed to a prompt
hearing on the issues even if a direct appeal of the case is pending.
{¶11} “In a petition for post-conviction relief, which asserts ineffective assistance
of counsel, the petitioner bears the initial burden to submit evidentiary documents
containing sufficient operative facts to demonstrate the lack of competent counsel and
that the defense was prejudiced by counsel’s ineffectiveness.” State v. Jackson, 64 Ohio
St.2d 107 (1980), syllabus. “For purposes of determining whether there are substantive
grounds for postconviction relief that would warrant a hearing, it is generally accepted
that affidavits presented in support of the petition should be accepted as true.” State v.
Pierce, 127 Ohio App.3d 578, 586 (11th Dist.1998). The “statute does not expressly
mandate a hearing for every post-conviction relief petition and, therefore, a hearing is not
automatically required.” Jackson, supra, at 110.
{¶12} The doctrine of res judicata is applicable to all postconviction proceedings.
State v. Adams, 11th Dist. Trumbull No. 2003-T-0064, 2005-Ohio-348, ¶38, citing State
v. Szefcyk, 77 Ohio St.3d 93, 95 (1996). “Under the doctrine, a defendant who was
represented by counsel is barred from raising an issue in a petition for postconviction
relief if the defendant raised or could have raised the issue at trial or on direct аppeal.”
Id., citing Szefcyk, supra, at syllabus and State v. Reynolds, 79 Ohio St.3d 158, 161
(1997). “‘To overcome the res judicata bar, evidence offered dehors the record must
demonstrate that the petitioner could not have appealed the constitutional claim based
upon the information in the original record.’” Id. at ¶39, quoting State v. Lawson, 103
Ohio App.3d 307, 315 (12th Dist.1995).
{¶13} “The fact that an appellant raised ineffective assistance of counsel claims
in a direct appeal does not bar such a claim in a petition for postcоnviction relief, provided
the claim in the postconviction exercise is predicated upon evidence outside the record.
We must look to the substance of the argument itself to determine whether it is barred by
res judicata.” Id. at ¶66; see also Knoefel v. Connick, 11th Dist. Lake No. 2016-L-131,
2017-Ohio-5642, ¶30-31 (Cannon, J., concurring).
{¶14} In appellant’s petition, with regard to the second claim for relief, appellant
alleged his trial counsel was deficient due to a failure to challenge the state’s case by not
filing any pretrial or suppression motions and the waiver of appellant’s speedy trial rights
without his consent. This claim was previously raised and rejected on the merits in
appellant’s direct appeal. See Miller, 2018-Ohio-4379, supra, at ¶16-17 (finding the
argument not well taken beсause appellant does not claim these actions precluded him
from entering a knowing or voluntary guilty plea). Thus, appellant’s second claim for relief
in his petition was barred by the doctrine of res judicata.
{¶15} We agree with appellant, however, that it was error for the trial court to apply
the doctrine of res judicata to his first claim for relief. Under this claim, appellant alleged
“the deficient performance is Miller’s counsеl making threats to get his client to plead.”
Although appellant did raise this argument on direct appeal, we explicitly held that it could
not be addressed therein because it relied on matters de hors the trial court record. Id.
at ¶18 (stating the claim must be raised in a petition for post-conviction relief).
{¶16} Further, the trial court had jurisdiction to consider the issue. The trial court’s
statement that it did not have jurisdictiоn to consider appellant’s petition “unless the matter
is remanded by an appellate court” was in error. See
consider a petition that is timely filed under division (A)(2) of this section even if a direct
appeal of the judgment is pending.”) and
files and records of the case show the petitioner is not entitled to relief, the court shall
proceed to a prompt hearing on the issues even if a direct appeal of the case is pending.”)
(emphasis added).
{¶17} Appellant’s assignments of error have merit, therefоre, to the extent
indicated.
{¶18} The judgment of the Geauga County Court of Common Pleas is affirmed in
part and reversed in part. This matter is remanded for the trial court to consider whether
appellant’s postconviction petition sets forth substantive grounds for relief that would
warrant a hearing, consistent with
110 (noting “a hearing is not automatically required”).
THOMAS R. WRIGHT, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.