STATE OF OHIO, Plаintiff-Appellee, - vs - MITCHELL PAUL SIMON, Defendant-Appellant.
CASE NO. CA2014-12-255
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
7/27/2015
[Cite as State v. Simon, 2015-Ohio-2989.]
RINGLAND, J.
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2013-12-1973
Michael K. Allen & Associates, Joshua A. Engel, Mary K. Martin, 5181 Natorp Blvd., Suite 210, Mason, Ohio 45040, for defendant-appellant
OPINION
RINGLAND, J.
{¶ 1} Defendant-appellant, Mitchell Simon, appeals the denial of his petition for postconviction relief (“PCR“) and motion to withdraw guilty plea in the Butler County Court of Common Pleas.
{¶ 2} The background facts of the present case were set forth in this court‘s prior decision in State v. Simon, 12th Dist. Butler No. CA2014-06-139, 2015-Ohio-970, ¶ 2-3, 5.
Simon originally appeared in the Butler County Juvenile Court for a probable cause hearing. The juvenile court found that probable cause existed, and then transferred the case to the common pleas court pursuant to Ohio‘s mandatory bindover statutes. Simon was therefore tried as an adult. Simon was indicted on two counts of attempted aggravated murder and one count of aggravated arson. He entered a plea of not guilty by reason of insanity, and also challenged his competency tо stand trial. The trial court ordered psychiatric evaluations as to Simon‘s claims of insanity and incompetency. The evaluations determined that Simon did not suffer from a severe mental defect and that he was competent to stand trial. Simon later withdrew his not guilty by reаson of insanity plea and entered a guilty plea to each charge.
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The trial court reviewed the principles and purposes of sentencing, and referred to the evaluations of Simon‘s mental health before ordering nine-year sentences on each of the three charges, to be served concurrently.
{¶ 3} Subsequently, Simon filed a petition for PCR and a motion to withdraw guilty plea on the basis that he was not provided effective assistance of counsel. Simon attached affidavits from himself, his father, mother, and uncle in support of the petition and motion.1 Those affidavits alleged that Simon‘s counsel misinformed him of the terms of his plea
{¶ 4} Simon now appeals the trial court‘s dеcision, raising four assignments of error for review. Because of the interrelation of Simon‘s first and third assignments of error and second and fourth assignments of error, respectively, we will discuss them together.
{¶ 5} Assignment of Error No. 1:
{¶ 6} THE TRIAL COURT ERRED IN DENYING APPELLANT‘S PETITION FOR POST-CONVICTION RELIEF.
{¶ 7} Assignment of Error No. 3:
{¶ 8} THE TRIAL COURT ERRED IN DENYING APPELLANT A HEARING ON HIS PETITION FOR POST CONVICTION RELIEF.
{¶ 9} Within these assignments of error, Simon argues that his petition should have been grаnted because he was denied his constitutional right to effective assistance of counsel. In the alternative, Simon argues he should have been afforded an evidentiary hearing to prove that he was denied effective assistance of counsel.
{¶ 10} To еstablish a claim of ineffective assistance of counsel, a defendant must show that his or her counsel‘s actions were outside the wide range of professionally competent assistance and prejudice resulted by reason of counsel‘s actions. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984); State v. Sheldon, 12th Dist. Brown No. CA2013-12-018, 2014-Ohio-5488, ¶ 40. Accordingly, counsel‘s performance will not be deemed ineffective unless (1) counsel‘s performance was deficient in that it fell below an objective standard of reasonableness, and (2) the defendant was prejudiced by that deficient performancе in that there is a reasonable probability but for counsel‘s deficient performance, the outcome of trial would have been different. Strickland at 687-688.
{¶ 11} A trial court‘s decision to summarily deny a postconviction petition without
{¶ 12} Under
{¶ 13} In Calhoun, the Ohio Supreme Court determined that “[t]o hold otherwise would require a hearing for every postconviction relief pеtition[,]” and that because
{¶ 14} The court in Calhoun also discussed the factors a trial court should consider in determining the credibility of supporting affidavits in PCR proceedings. Id. at 284-285. Calhoun states that a trial court should consider “all relevant factors” in determining the
(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.
Id. at 285, citing State v. Moore, 99 Ohio App.3d 748 (1st Dist.1994).
{¶ 15} Calhoun also states that “[d]epending on the entire record, one or more of these or other factors may be sufficient to justify the conclusion that an affidavit asserting information outside the record lacks credibility[,]” and that “[s]uch a deсision should be within the discretion of the trial court.” Id.
{¶ 16} In determining that the affidavits attached to Simon‘s petition for PCR were not credible, the trial court specifically considered the factors set forth in Calhoun. The trial court found that,
[f]irst, this Court was the court that was assigned this matter and heard all matters relating to the case in chief. Secondly, the court finds that all four affidavits contain identical language, or otherwise appear to have been drafted by the same person. Additionally, all four affidavits reference statements made by trial counsel, Brad Kraеmer to the affiants. Fourth, all the affidavits are from family members of the defendant. Mr. Simon‘s mother, father and Uncle all submitted affidavits in support of their son/nephew, Mitchell Simon.
Further, any evidence of a “promised” sentence at either the time of the plea or at disposition is absent. No mention of a “promised” sentence or “agreed” sentence is in the transcript because there was no “promised” sentence or “agreed” sentence.
{¶ 17} Having determined that Simon‘s affidavits lacked credibility, the trial court found no evidence to support Simon‘s claim that his counsel was ineffective. It is a well-established principle that this court should not substitute its own judgment regarding credibility for that of
{¶ 18} In light of the foregoing, having found that the trial court did not abuse its discretion in denying Simon‘s petition for PCR without a hearing, Simon‘s first аnd third assignments of error are overruled.
{¶ 19} Assignment of Error No. 2:
{¶ 20} THE TRIAL COURT ERRED IN DENYING APPELLANT‘S MOTION TO WITHDRAW PLEA.
{¶ 21} Assignment of Error No. 4:
{¶ 22} THE TRIAL COURT ERRED IN DENYING APPELLANT A HEARING ON HIS MOTION TO WITHDRAW PLEA.
{¶ 23} Within these assignments of error, Simon argues that his motion to withdraw guilty plea should have been granted because it was not made voluntarily and intelligently. In the alternative, Simon argues he should have been afforded an evidentiary hearing to prove that his plea was not made voluntarily and intelligently.
{¶ 24} Pursuant to
{¶ 25} In addition, a trial court is not required to hold an evidentiary hearing on a motion to withdrаw a guilty plea unless the defendant establishes a reasonable likelihood that a withdrawal of his plea is necessary to correct a manifest injustice. State v. Williams, 12th Dist. Warren No. CA2009-03-032, 2009-Ohio-6240, ¶ 14
{¶ 26} This court has recognized that ineffective assistance of counsel can be a proper bаsis for seeking a post-sentence withdrawal of a guilty plea. State v. Daugherty, 12th Dist. Clermont No. CA2013-08-063, 2014-Ohio-2236, ¶ 16. When the alleged error underlying a motion to withdraw a guilty plea is ineffective assistance of counsel, the movant must show that (1) his counsel‘s performance was deficient; and (2) there is a reasonable probability that, but for counsel‘s errors, he would not have pled guilty. State v. Williams, 12th Dist. Warren No. CA2009-03-032, 2009-Ohio-6240, ¶ 15, citing State v. Xie, 62 Ohio St.3d 521, 524 (1992), and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. State v. Williams, 12th Dist. Clermont No. CA2012-08-060, 2013-Ohiо-1387, ¶ 15.
{¶ 27} “A trial court‘s decision regarding a post-sentence motion to withdraw a guilty plea is reviewed on appeal under an abuse of discretion standard.” State v. Rose, 12th Dist. Butler CA2010-03-059, 2010-Ohio-5669, ¶ 15. An abuse of discretion connotes more than an error of law or judgment; it implies that the trial court‘s attitude wаs arbitrary, unreasonable, or unconscionable. State v. Robinson, 12th Dist. Butler No. CA2013-05-085, 2013-Ohio-5672, ¶ 14.
{¶ 28} Simon argues that the trial court erred in denying his motion to withdraw guilty
{¶ 29} As discussed above, the trial court found that the affidavits attached to Simon‘s motion from himself, his mother, father, and uncle in support of the motion lacked credibility. And we again recognize that this court should not substitute its own judgment regarding credibility for that of the trial court. Furthermore, at the plea hearing, the following exchange took place:
THE COURT: Has anyone made you any prоmises in exchange for this plea?
[SIMON]: No, sir.
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THE COURT: Okay. Now you understand, sir, that Count I is attempted aggravated murder and carries with it a possibility of 11 years in prison and a $20,000 fine. Count II is attempted aggravated murder. Again, that carries with it 11 years in prison and a $20,000 fine. And Count III is attempted aggravated аrson. That carries with it a maximum of 11 years in prison and a $20,000 fine. You understand that?
[SIMON]: Yes, sir.
THE COURT: You understand, sir, that you‘re exposing yourself to the possibility of being sentenced to 33 years in prison and being fined $60,000?
[SIMON]: Yes, sir.
{¶ 30} In addition, Simon signed a plea form which set forth the potential maximum prison terms and acknowledged that no promises were made in return for the plea. At no point did Simon make mention of any alleged promises regarding a lenient sentence. Based upon the plea hearing, plea form, and the trial court‘s determination that Simon‘s affidavits
{¶ 31} In light of the foregoing, having found that the trial court did not abuse its discretion in denying Simon‘s motion to withdraw guilty plea without an evidentiary hearing, Simon‘s second and fourth assignments of error are overruled.
{¶ 32} Judgment affirmed.
M. POWELL, P.J., and S. POWELL, J., concur.