STATE OF OHIO, PLAINTIFF-APPELLEE vs. MICHAEL E. MOON, DEFENDANT-APPELLANT
No. 101972
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
RELEASED AND JOURNALIZED: April 23, 2015
[Cite as State v. Moon, 2015-Ohio-1550.]
BEFORE: E.A. Gallagher, J., Keough, P.J., and Stewart, J.
JUDGMENT: AFFIRMED IN PART; REVERSED IN PART; REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-09-522061-A
Sarah H. Schregardus
Barry W. Wilford
Kura, Wilford & Schregardus Co., L.P.A.
492 City Park Avenue
Columbus, Ohio 43215
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Daniel T. Van
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant Michael Moon appeals the trial court‘s denial of his postconviction petition to vacate and set aside his sentences and his motion to withdraw his guilty pleas to more than 50 counts of pandering sexually oriented matter involving a minor, illegal use of a minor in nudity-oriented material or performance and possession of criminal tools based on his claim that he was denied effective assistance of trial counsel. Moon contends that he was denied effective assistance of counsel due to his trial counsel‘s failure to obtain, review and challenge the validity of a search warrant that gave rise to a number of the offenses with which he was charged, prior to the entry of his guilty pleas. We find that the trial court lacked jurisdiction to consider, and, therefore, properly denied, Moon‘s motion to withdraw his guilty pleas. However, for the reasons that follow — in particular the absence of any evidence in the record demonstrating that the search warrant was, in fact, issued — we conclude that the trial court abused its discretion in denying Moon‘s postconviction petition without a hearing. We remand the case for the trial court to conduct a hearing to investigate the circumstances surrounding the alleged search warrant and to determine whether Moon is entitled to the relief he seeks on his postconviction petition.
Factual and Procedural Background
{¶2} On July 29, 2008, Moon was at Cleveland Hopkins International Airport traveling for a business trip. When his checked bags were sent through security
{¶3} On August 6, 2008, Cleveland police obtained a warrant to search the remainder of Moon‘s luggage and a laptop that were seized at the airport. The search revealed nothing other than those images. On August 8, 2008, a warrant was purportedly obtained from the Medina County Court of Common Pleas to search Moon‘s home in Medina, Ohio for further evidence that Moon had engaged in criminal activity related to child pornography (the “August 8, 2008 search warrant“). As a result of that search, police officers recovered seven computer disks that were later discovered to contain images of child pornography. A third search warrant, to search the property that had been seized from the house during the August 8, 2008 search, including various еlectronic devices, computer peripherals, cell phones, floppy discs, CDs and DVDs, was issued on August 15, 2008.
{¶4} On March 18, 2009, the Cuyahoga County Grand Jury indicted Moon on 101 counts — four counts of pandering sexually-oriented matter involving a minor, 42 counts of illegal use of a minor in nudity-oriented material or performance, 53 counts of pandering sexually oriented matter involving a minor and two counts of possession of criminal tools. The offenses arose from Moon‘s possession of over 500 images of child pornography. State v. Moon, 8th Dist. Cuyahoga No. 93673, 2010-Ohio-4483, ¶ 3.
{¶5} On June 8, 2009, Moon pled guilty to four counts of pandering sexually oriented matter involving a minor in violation of
{¶6} Although Moon and his counsel were aware that search warrants had allegedly been obtained for the search of Moon‘s luggage, laptop and home, Moon‘s trial counsel did not request or obtain copies of the search warrants or otherwise review the search warrants before Moon entered his guilty pleas. The prosecutor purportedly stated
{¶7} On July 8, 2009, the trial court sentenced Moon to a prison term of (1) six years each on Counts 1-4, to run concurrently with each other, (2) six years each on Counts 5-40, to run concurrently with each other, (3) six years each on Counts 47-56, to run concurrently with each other and (4) one year each on Counts 100 and 101. The sentences on Count 1 (six years), Count 5 (six years), Count 47 (six years), Count 100 (one year) and Count 101 (one year) were to run consecutively, for an aggregate prison sentence of 20 years. The trial court also imposed a five-year mandatory period of postrelease control on counts 1, 5 and 47, a three-year period of discretionary postrelease control on counts 100 and 1012 and classified Moon as a Tier II sex offender/child victim offender subject to the requirements of that classification for 25 years.
{¶8} Moon appealed his convictions and sentences, retaining new counsel to represent him in his appeal. Among the issues Moon raised in his appeal was that trial counsel was ineffective for failing to request that the search warrant relating to the search of Moon‘s home be unsealed prior to advising Moon to enter his guilty pleas. Moon, 2010-Ohio-4483 at ¶ 6. Moon argued that by not requesting and reviewing the sealed search warrant, trial counsel was deprived of the possibility of arguing that the search warrant was defective and that, if the search warrant had been found to be defective, the
{¶9} After his direct appeal was unsuccessful, Moon hired new counsel to represent him. On October 13, 2011, Moon‘s counsel filed a motion to unseal the search warrants “for the limited purpose of providing a copy to [new] counsel.” The state did not oppose the motion, and the trial court granted the unopposed motion on December 5, 2011.
{¶10} Nearly six months later, on May 18, 2012, Moon filed a motion with the trial court to have “the search warrant[s] issued in Mr. Moon‘s case be made a part of the official court record” under
{¶11} On May 31, 2012, Moon filed a petition for a writ of habeas corpus with the United States District Court for the Northern District of Ohio, asserting that he had been denied effective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution when trial counsel advised him to plead guilty to various charges without examining the search warrant authorizing the search of his home or filing a motion to unseal the search warrant.3 Moon v. Robinson, N.D.Ohio No. 1:12cv1396, 2013 U.S. Dist. LEXIS 108799, *7 (Aug. 2, 2013). The district court found that the performance of both trial and appellate counsel was deficient for their respective failures to (1) file a motion to unseal the search warrant, (2) investigate the existence of probable cause to support it and (3) provide the appellate court with an
{¶12} On August 30, 2013, Moon filed an application to reopen his appeal pursuant to
{¶13} On February 20, 2014, Moon filed a motion to withdraw his guilty pleas pursuant to
{¶14} This appeal followed. In his appeal, Moon raises the following two assignments of error for review:
Assignment of Error 1:
The trial court abused its discretion when it denied Mr. Moon‘s postconviction petition in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.
Assignment of Error 2:
The trial court abused its discretion when it denied Mr. Moon‘s Motion to Withdraw his Guilty Plea in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.
Law and Analysis
The Missing Search Warrant
{¶15} As an initial matter, we note that only the “affidavit for search warrant” upon which the finding of probablе cause for the issuance of the alleged August 8, 2008 search warrant was purportedly based (the “August 8, 2008 affidavit“) is part of the record on appeal, not the warrant itself. Search warrants are issued pursuant to the authority in
Postconviction Petition
{¶16} In first assignment of error, Moon argues that the trial court abused its discretion in denying his postconviction petition to vacate and set aside his sentences without conducting a hearing. Moon argued in his postconviction petition that his convictions and sentence were void оr voidable because he was denied his constitutional right to effective assistance of counsel. He asserted that, due to the ineffective assistance of counsel, his guilty pleas were not knowing, intelligent and voluntary and that were it not for his trial counsel‘s failure to obtain and review the alleged August 8, 2008 search warrant and to then file a motion to suppress the evidence seized pursuant to that search
{¶17} Moon contends that his petition, albeit untimely, satisfied an exception for untimely filing under
{¶18}
{¶20} If a defendant‘s petition is untimely under
(A) Whether a hearing is or is not held on a petition filed pursuant to section 2953.21 of the Revised Code, a court may not entertain a petition filed after the expiration of the period prescribed in division (A) of that section * * * unless division (A)(1) or (2) of this section applies:
(1) Both of the following apply:
(a) Either the petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief, or, subsequent to the period prescribed in division (A)(2) of section 2953.21 of the Revised Code or tо the filing of an earlier petition, the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner‘s situation, and the petition asserts a claim based on that right.
(b) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted * * *.
{¶21} The time limit for filing a motion for postconviction relief is jurisdictional. State v. Johns, 8th Dist. Cuyahoga No. 93226, 2010-Ohio-162, ¶ 8. Unless a defendant makes the showings required by
{¶22} A petitioner is not automatically entitled to a hearing on a petition for postconviction relief. State v. Cole, 2 Ohio St.3d 112, 113, 443 N.E.2d 169 (1982). In addressing a petition for postconviction relief, a trial court assumes a “gatekeeping role” as to whether a defendant will receive a hearing. Gondor, 2006-Ohio-6679 at ¶ 51. A trial сourt is required to hold an evidentiary hearing only if the petitioner alleges sufficient operative facts that show substantive grounds for relief. State v. Calhoun, 86 Ohio St.3d 279, 282-83, 714 N.E.2d 905 (1999). A trial court may dismiss a petition for
{¶24} A trial court‘s decision to deny a postconviction petition without a hearing is reviewed for abuse of discretion. State v. Broom, 8th Dist. Cuyahoga No. 96747, 2012-Ohio-587, ¶ 13, citing State v. Abdussatar, 8th Dist. Cuyahoga No. 92439, 2009-Ohio-5232, ¶ 15. An “abuse of discretion” requires more than an error of law or of judgment; it “implies that the court‘s attitudе is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶25} Moon does not claim that a new federal or state right has been recognized that applies retroactively to his situation. Rather, he contends that he was “unavoidably prevented” from discovering that the August 8, 2008 search warrant was defective because he received ineffective assistance of counsel, first from his trial counsel and then from his first appellate counsel, both of whom failed to obtain or review the August 8, 2008 search warrant. “Unavoidably prevented” means that the defendant “‘was unaware
Ineffective Assistance of Counsel
{¶26} In a petition for postconviction relief based on a claim of ineffective assistance of counsel, the petitioner bears the initial burden to submit evidentiary documents containing sufficient operative facts to demonstrate: (1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) that counsel‘s deficient performance prejudiced him, i.e., a reasonable probability that but for counsel‘s errors, the result of the proceeding would have been different. State v. Moore, 2d Dist. Clark No. 2014-CA-66, 2015-Ohio-550, ¶ 13, citing State v. Kapper, 5 Ohio St.3d 36, 38, 448 N.E.2d 823 (1983);
{¶27} A claim of ineffective assistance of counsel is waived by a guilty plea, except to the extent that the ineffective assistance of counsel caused the defendant‘s plea to be less than knowing, intelligent and voluntary. State v. Williams, 8th Dist. Cuyahoga No. 100459, 2014-Ohio-3415, ¶ 11, citing State v. Spates, 64 Ohio St.3d 269, 272, 595 N.E.2d 351 (1992), citing Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). Where a defendant has entered a guilty plea, the defendant can prevail on an ineffective assistance of counsel claim only by demonstrating that there is a reasonable probability that, but for counsel‘s deficient performance, he would not have pled guilty to the offenses at issue and would have insisted on going to trial. Williams at ¶ 11, citing State v. Xie, 62 Ohio St.3d 521, 524, 584 N.E.2d 715 (1992), and Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The prejudice inquiry in the context of a guilty plea requires a “nuanced analysis of all of the factors surrounding the plea decision,” including the benefits associated with a plea, the possible punishments involved, the weight of the evidence against the defendant and any other special circumstances that might support or rebut a defendant‘s claim that he would have taken his chances at trial. State v. Ayesta, 8th Dist. Cuyahoga No. 101383, 2015-Ohio-600, ¶ 16.
{¶29} Moon contends that had his trial counsel obtained and reviewed the August 8, 2008 search warrant, he would have discovered that the alleged warrant was issued without probable cause, or, at the very lеast, that there was “a Fourth Amendment issue that needed to be litigated” relating to the alleged search warrant. Moon further contends that if he had been aware that the evidence that formed the basis for Counts 47-101 of the indictment was “tainted by the improper search and therefore excludable,” he would not have entered his guilty pleas.
{¶30} The documents submitted by Moon and that have been represented by the parties to constitute the “search warrants” in this case on their face show a deficiency with the August 8, 2008 search warrant that is not explained anywhere in the record: there is no August 8, 2008 search warrant. It is undisputed that Moon‘s trial counsel did not request or review the search warrants in the case prior to Moon‘s entry of his guilty pleas, that Moon‘s first appellate counsel did not request or review the search warrants at any time and that it was not until Moon engaged new counsel in October 2011 and his motiоn to unseal the search warrants was granted in December 2011 — long after the 180-day deadline set forth in
{¶31} Trial counsel has a duty to conduct a reasonable investigation to determine possible defenses or to make a reasonable decision that a particular investigation is unnecessary. Strickland, 466 U.S. at 691, 104 S.Ct. 2052, 80 L.Ed.2d 674. There is no evidence in the record that trial counsel conducted such an investigation as it relates to the warrant to search Moon‘s home or otherwise made a reasonable decision that an investigation into the validity of the search warrant was unnecessary. No explanation has been offered as to why trial counsel failed to move to unseal the search warrants and to examine the warrants and the supporting affidavits prior to the entry of Moon‘s guilty pleas. Thus, Moon has alleged sufficient facts that, if proven true, could support a finding that his trial counsel‘s failure to file a motion to unseal the search warrants and to examine the search warrants for potential defects prior to Moon‘s entry of his guilty pleas constituted deficient performance of trial counsel.
{¶32} With respect to whether Moon was prejudiced as a result of his trial counsel‘s deficient performance, Moon has likewise alleged facts that, if proven true, could establish a basis to suppress the evidence at issue. Eleven of the counts to which Moon entered guilty pleas were based exclusively on evidence seized during the August
Under such circumstances, it could be reasonably expected that Moon would not have pled guilty to those counts. Thus, the operative facts set forth in Moon‘s petition and related evidentiary materials, if proven true, could establish that (1) Moon, as a result of the sealing of the warrants and the failures of his trial and appellate counsel, was “unavoidably presented from discovery of the facts” upon which he relies for his claim for relief under
{¶33} In reaching this conclusion, we are aware that this court and others have previously held that where a defendant enters a guilty plea,
{¶34} As one court has explained,
“[t]he plea of guilty is a complete admission of the defendant‘s guilt.” State v. Barton, 108 Ohio St.3d 402, 2006-Ohio-1324, 844 N.E.2d 307, ¶ 73, quoting Crim.R. 11(B)(1). “By entering a plea of guilty, the accused is not simply stating that he did the discrete acts described in the indictment; he is admitting guilt of a substantive crime.” State v. Barnett, 73 Ohio App.3d 244, 248, 596 N.E.2d 1101 (1991), quoting United States v. Broce, 488 U.S. 563, 570, 109 S. Ct. 757, 102 L. Ed. 2d 927 (1989). Therefore, [the defendant] has no basis to claim that a reasonable factfinder would not have found him guilty but for constitutional error at trial.
State v. Cool, 9th Dist. Summit No. 24518, 2009-Ohio-4333, ¶ 14; see also State v. Estridge, 2d Dist. Greene No. 2005 CA 136, 2006-Ohio-5310, ¶ 8 (Appellant did not meet burden under
{¶35} However, we believe that this case is distinguishable from the cases cited above. First, in this case, Moon contends that, as a result of the ineffective assistance he received from counsel, his guilty pleas were not knowingly, intelligently or voluntarily made. Accordingly, the fact that a guilty plea is generally regarded as “a complete admission of the defendant‘s guilt” should not, in and of itself, preclude relief. Second, in the usual case involving a conviction based on a guilty plea, because there is no trial, it is impossible to know what evidencе would have been presented and thus virtually impossible for a defendant to establish by clear and convincing evidence that a reasonable factfinder would not have found him guilty “but for constitutional error at trial.” This case is different. In this case, assuming the truth of the facts asserted by Moon (and as it appears from the absence of the search warrant in the record), if the evidence giving rise to Counts 47-56 and 101 of the indictment was seized without a valid search warrant, that evidence could have been excluded had defendant‘s trial counsel filed a motion to suppress that evidence and thus there would have been no evidence upon which the jury could have reasonably convicted Moon of those counts at trial. Therefore, we believe the facts alleged by Moon, if proven true, could establish that no reasonable factfinder would have found him guilty of these counts but for the alleged ineffective assistance of his trial counsel. The fact that Moon pled guilty to those counts thus does not, in and of itself, preclude him from satisfying the requirements of
Moon‘s first assignment of error is well-taken.
Motion to Withdraw Guilty Pleas
{¶37} In his second assignment of error, Moon contends that the trial court abused its discretion in summarily denying his motion to withdraw his guilty pleas without an evidentiary hearing. Moon‘s second assignment of error is based on the same facts, arguments and evidence as his first assignment of error, i.e., that he was denied the
{¶38} The withdrawal of a guilty plea is governed by Crim.R. 32.1, that states:
A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.
{¶39} We reviеw a trial court‘s decision to deny a defendant‘s postsentence motion to withdraw a guilty plea under an abuse of discretion standard. State v. Britton, 8th Dist. Cuyahoga No. 98158, 2013-Ohio-99, ¶ 17, citing State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph two of the syllabus, and State v. Peterseim, 68 Ohio App.2d 211, 214, 428 N.E.2d 863 (8th Dist.1980).
{¶40} We find no abuse of discretion here because a trial court lacks jurisdiction to consider a defendant‘s motion to vacate his guilty pleas under Crim.R. 32.1 after a court of appeals has reviewed and affirmed the defendant‘s convictions. State ex rel. Special Prosecutors v. Judges, Belmont Cty. Court of Common Pleas, 55 Ohio St.2d 94, 97-98, 378 N.E.2d 162 (1978) (a trial court loses jurisdiction over a case “after an appeal has been taken and decided” and that, absent a remand, does not regain jurisdiction subsequent to the decision of the appellate court); see also State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 61-62; State v. Nicholson, 8th Dist. Cuyahoga No. 97567, 2012-Ohio-1550, ¶ 9-10; State v. Vild, 8th Dist. Cuyahoga Nos. 87742, and 87965, 2007-Ohio-987, ¶ 12 (“A trial court has no jurisdiction to grant a motion to withdraw a plea after the plea and judgment have been affirmed on appeal.“) Crim.R. 32.1 does not “vest jurisdiction in the trial court to maintain and determine a motion to withdraw the guilty plea subsequent to an appeal and affirmance by the appellate court.” Special Prosecutors at 97; compare State v. Davis, 131 Ohio St.3d 1, 2011-Ohio-5028, 959 N.E.2d 516 (distinguishing Special Prosecutors holding that a trial court retains jurisdiction to decide a motion for a new trial based on newly discovered evidence when the specific issue has not been decided upon direct appeal and explaining that “the holding in Special Prosecutors does not bar the trial court‘s jurisdiction over posttrial motions permitted by the Ohio Rules of Criminal Procedure. These motions provide a safety net for defendants who have reasonable grounds to challenge their convictions and sentences. The trial court acts as the gatekeeper for these motions and, using its discretion, can limit the litigation to viable claims only.“).
{¶41} In this case, Moon appealed the trial court‘s judgment to this court, and this court affirmed his convictions, which were based on his guilty pleas. Moon, 2010-Ohio-4483. The trial court, therefore, did not have jurisdiсtion to consider Moon‘s motion to withdraw his plea under Crim.R. 32.1.
{¶42} Accordingly, the trial court did not abuse its discretion in denying Moon‘s motion to withdraw his guilty pleas without a hearing. Moon‘s second assignment of error is overruled.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
_________________________________
EILEEN A. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
MELODY J. STEWART, J., CONCUR