State v. SpencerState v. Spencer
STATE OF OHIO, PLAINTIFF-APPELLEE vs. JERMAINE SPENCER, DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-346501 and CR-347670
BEFORE: Celebrezze, J., Stewart, P.J., and Jones, J.
RELEASED: April 15, 2010
JOURNALIZED:
Robert E. Davis
55 Public Square
Suite 1500
Cleveland, Ohio 44113-1998
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Katherine Mullin
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court’s decision. See
FRANK D. CELEBREZZE, JR., J.:
{¶ 2} On December 13, 1996, appellant’s sister, Lashandra Spencer, came to him hysterically explaining that she had been sexually assaulted. Rather than call the police, appellant traveled to the scene of the alleged incident to confront the purported offender. His sister followed him to the scene. Appellant shot and killed 18-year-old Cornelius Haywood.
{¶ 3} Appellant and his sister were soon arrested and charged. Appellant was appointed two attorneys to represent him. After disagreements with one of the attorneys arose, appellant fired him and a new
{¶ 4} Trial was scheduled to commence on September 22, 1997. On that day, the trial court held a hearing on appellant’s motion to suppress inculpatory statements he made to police. The trial court refused to grant appellant’s motion, and plea negotiations began anew. After a recess where appellant discussed his chances of success at trial, his possible sentence under the terms of the plea agreement, and his sister’s plea agreement should he plead guilty, appellant agreed to plead guilty. As part of the deal, appellant would plead guilty to one count of murder with a three-year firearm specification, carrying a concealed weapon, possession of drugs, having a weapon while under disability, and aggravated menacing, and the likely sentence would be 15 years to life for the murder charge with three additional years for the firearm specification. Appellant’s sister would plead to
{¶ 5} After entering his pleas, appellant was sentenced to 18 months incarceration for carrying a concealed weapon; 18 months for possession of cocaine; one year for having a weapon while under disability; 15 years to life for murder, plus three years for the firearm specification; a $10,000 fine for murder; and a $500 fine for aggravated menacing. All terms of imprisonment were to be served concurrently except for the three-year firearm specification, which was to be served consecutively to the 15-year term for murder. Appellant’s sister pleaded guilty to involuntary manslaughter and received two years of community control with one year of house arrest, as well as a monetary fine, which was later amended to several hundred hours of community service.
{¶ 6} Shortly after sentencing, on October 16, 1997, appellant filed a pro se motion to withdraw his guilty plea, which was denied. Appellant also filed a motion for postconviction relief in April 1998, which was also unsuccessful. Appellant, again pro se, appealed the denial of his motion for relief from judgment, but this court dismissed the appeal.
{¶ 7} On March 18, 2008, citing what he contends was newly discovered information, appellant filed another motion to withdraw his guilty plea. The
Law and Analysis
Standard of Review
{¶ 8} After a defendant’s sentence has been imposed, his guilty plea may be withdrawn only if he is able to show manifest injustice.
Undue Delay
{¶ 9} In appellant’s third assignment of error, he claims that the delay in bringing his motion to withdraw his guilty plea must be excused because the trial court informed him that there would be no appeal. While there is no time limit in which to bring a motion to withdraw a guilty plea, it should be noted that “it has been held that an undue delay between the occurrence of the alleged cause for withdrawal and the filing of the motion is a factor adversely affecting the credibility of the movant and militating against the granting of the motion.” Smith at 264, citing Oksanen v. U.S. (C.A.8, 1966), 362 F.2d 74. Appellant previously filed a motion to withdraw his plea soon after sentencing, as well as an appeal from the trial court’s denial of his postconviction relief motion. This cuts against his argument that delay must be excused because of the misstatements of the trial court. Appellant did, in fact, appeal. Because there is no specific time limit for a motion to withdraw a guilty plea, appellant’s motion is not barred, but its credibility is negatively impacted by its tardiness of some 11 years.
Res Judicata
{¶ 11} The doctrine of res judicata bars succesive litigation of issues and events that were or could have been raised in the prior proceedings. Grava v. Parkman Twp., 73 Ohio St.3d 379, 1995-Ohio-331, 653 N.E.2d 226. In this case, “[t]he doctrine of res judicata requires a plaintiff to present every ground for relief in the first action, or be forever barred from asserting it.” Id. at 382, quoting Natl. Amusements, Inc. v. Springdale (1990), 53 Ohio St.3d 60, 62, 558 N.E.2d 1178.
{¶ 12} Appellant alleges issues that were or could have been raised in his prior motions. “Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment.” State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104, paragraph nine of the syllabus.
{¶ 13} In appellant’s October 1, 1997 motion to withdraw his guilty plea, he argued that his counsel was ineffective, that he was coerced into accepting a plea, and that the trial court was biased. In his April 9, 1998 postconviction relief motion, he raised issues involving the coercive nature of the state’s
{¶ 14} Appellant’s claims in his first assignment of error, which take issue with the trial court’s actions and alleged bias as well as the voluntary nature of his plea, were or could have been brought in his earlier motions and are barred by res judicata.
{¶ 15} Appellant argues that the doctrine cannot apply because he filed these prior motions pro se, and the holding in Perry applies only to motions filed with representation. This court has ruled otherwise. In State v. Adamson (Mar. 23, 1995), Cuyahoga App. No. 67187, we held: “Perry’s reference to representation concerns the criminal trial and appeal, not the postconviction proceeding. A petition for postconviction relief is a civil proceeding. * * * We find no reason to preclude the application of res judicata because a petitioner in a civil proceeding without the right to counsel acted pro se. This is especially true where, as here, the claims were actually raised in the earlier petition.” (Internal citations omitted.) See, also, State v. Jackson, Cuyahoga App. No. 92013, 2009-Ohio-3293, at ¶21 (holding the “trial court’s denial of appellant’s first two [pro se] motions to withdraw his guilty plea was an adjudication on the merits of his claims and was based upon the same facts and sought the same relief as the instant motion, the trial
{¶ 16} Therefore, res judicata bars the claims in appellant’s first assignment of error as well as many of the claims in his second assignment of error.
Newly Discovered Evidence of Ineffective Assistance of Counsel
{¶ 17} In appellant’s second assignment of error, he claims that newly discovered evidence of his trial counsel’s ineffectiveness requires the withdrawal of his guilty plea.
{¶ 18} A claim of ineffective assistance of counsel is a valid reason to withdraw a guilty plea if it resulted in a manifest injustice. State v. Turner, 171 Ohio App.3d 82, 2007-Ohio-1346, 869 N.E.2d 708. Because appellant has previously raised issues of ineffective assistance of counsel, only those claims of ineffectiveness based on newly discovered evidence will be addressed; the rest are barred by res judicata as explained above.
{¶ 19} Appellant argues he only recently discovered that trial counsel informed him under the wrong probation statutes and that trial counsel misinformed him about the evidence the state had against him.
{¶ 20} Appellant supported his motion to withdraw with two affidavits, one from him and one from his co-defendant sister. In State v. Kenney, Cuyahoga App. Nos. 81752 and 81879, 2003-Ohio-2046, this court recognized
{¶ 21} “[T]he good faith, credibility and weight of the movant’s assertions in support of the motion are matters to be resolved by the trial court.” Smith, supra, at paragraph two of the syllabus. The trial court may properly discount the self-serving affidavits of the co-defendants in this case. This court has held that “[a] trial court may discount self-serving affidavits from the petitioner or his family members. State v. Moore (1994), 99 Ohio App.3d 748, 651 N.E.2d 1319. Although a trial court should give deference to affidavits filed in support of a postconviction relief petition, it may exercise its discretion when assessing the credibility of the affidavits. State v. Calhoun (1999), 86 Ohio St.3d 279, 714 N.E.2d 905, paragraph one of the syllabus.” State v. Stedman, Cuyahoga App. No. 83531, 2004-Ohio-3298, ¶29. See, also, State v. Brown, 167 Ohio App.3d 239, 2006-Ohio-3266, 854 N.E.2d 583, ¶13
{¶ 22} The evidence submitted by appellant fails to meet this “threshold standard of cogency.” Even if appellant’s supporting affidavits are to be believed, parole is not guaranteed. See Papp v. State Adult Parole Auth., Franklin App. No 01AP-892, 2002-Ohio-199. Also, “[e]rroneous advice of counsel as to the penalty which could be imposed does not, in and of itself, lead to manifest injustice.” U. S. v. Scharf (C.A.8, 1978), 568 F.2d 106, 108. Therefore, this alleged error by counsel does not evidence a manifest injustice and is not sufficient grounds to warrant a hearing on appellant’s present motion without more. State v. Hutchings, Stark App. No. 2003CA00343, 2004-Ohio-3532.
{¶ 23} In an effort to show the additional injustice required in the above cases, appellant also argues that the weapon seized from him when he was arrested did not ballistically match the murder weapon, contrary to what his attorney had informed him. He attached an unauthenticated report to his motion, which he purports shows that the ballistic tests did not match. Again, appellant fails to demonstrate that a manifest injustice has occurred, even if this document were what appellant purports it to be. There was ample evidence, including appellant’s own statements that he shot and killed
Evidentiary Hearing
{¶ 24} In appellant’s final assigned error, he argues that the trial court abused its discretion when it failed to hold a hearing on his motion to withdraw his guilty pleas. For the reasons set forth above, the trial court did not abuse its discretion when it rejected appellant’s motion without holding a hearing. What was not properly barred by res judicata was insufficient to demonstrate that a manifest injustice resulted from appellant’s guilty pleas.
Conclusion
{¶ 25} Appellant’s successive attempts to withdraw his guilty pleas mean that much of the current petition is properly barred by res judicata. While the oppressive nature of the conditional plea agreement troubles this court, that issue was previously addressed by the trial court and appealed to this court. Claims of ineffective assistance of counsel based on newly discovered evidence lack a showing of a manifest injustice sufficient to warrant a hearing on the issue. Appellant’s statements to the police as well as other evidence showed that appellant shot and killed Cornelius Haywood. Appellant does not argue otherwise, but merely contends that counsel misinformed him regarding the ballistic evidence and the probation statutes. This does not
{¶ 26} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
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
FRANK D. CELEBREZZE, JR., JUDGE
MELODY J. STEWART, P.J., and
LARRY A. JONES, J., CONCUR
Appendix A
Appellant’s Assignments of Error:
I. “The trial court erred in denying relief in appellant’s 32.1 motion to withdraw the guilty plea where evidence on and off the record established that his guilty plea was not entered voluntarily; it was induced by promises and threats, not of his own free will in violation of
II. “Defendant’s pleas were based on defense counsel’s erroneous and incorrect legal advice; the pleas were not entered voluntarily, knowingly and understandingly, in violation of defendant’s rights under the Fourteenth Amendment to the United States Constitution.”
III. “As a mater of law, the delay in this case must be excused because the trial court instructed appellant Spencer that there was no appeal in this case;
IV. “As a matter of law, appellant’s claims are not barred by res judicata.”
V. “As a matter of law, appellant’s [sic] should have been afforded an evidentiary hearing.”