STATE OF OHIO, Plaintiff-Appellee v. CRAIG THOMPSON, Defendant-Appellant
Appellate Case No. 27924
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
November 21, 2018
[Cite as State v. Thompson, 2018-Ohio-4689.]
Trial Court Case No. 2013-CR-377/2 (Criminal Appeal from Common Pleas Court)
CRAIG THOMPSON, Inmate No. A721-446, Warren Correctional Institution, P.O. Box 120, Lebanon, Ohio 45036 Defendant-Appellant, Pro Se
O P I N I O N
Rendered on the 21st day of November, 2018.
TUCKER, J.
{¶ 2} We find that the trial court abused its discretion, under the circumstances, by entering judgment on Thompson‘s petition for postconviction relief without holding a hearing. Although Thompson submitted six affidavits in support of the petition, the State did not respond with affidavits or other summary judgment evidence in support of its opposition, yet the trial court granted judgment in the State‘s favor without indicating why it disregarded Thompson‘s evidence. Therefore, we reverse the judgment of January 31, 2018, and remand this case to the trial court. On remand, the trial court should allow the parties to renew their arguments and, if warranted by the parties’ submissions, hold
I. Facts and Procedural History
{¶ 3} On March 5, 2013, a Montgomery County grand jury issued an indictment against Thompson, charging him with one count of complicity in the commission of burglary, a second degree felony pursuant to
{¶ 4} In advance of his second trial, Thompson moved to dismiss the indictment against him on double-jeopardy grounds. The trial court overruled the motion, and Thompson appealed. We affirmed the trial court‘s judgment. State v. Thompson, 2d Dist. Montgomery No. 26280, 2014-Ohio-5583. Following the second trial, in December 2015, Thompson was found guilty, and the trial court sentenced him to a six-year term of imprisonment. Thompson initiated a second appeal, and we affirmed his conviction. State v. Thompson, 2d Dist. Montgomery No. 26954, 2016-Ohio-7521.
{¶ 5} On February 15, 2017, Thompson filed a motion with the Ohio Supreme Court in which he requested that the Court disqualify the trial judge presiding over his case. He filed a petition for postconviction relief with the trial court one day later, along with a motion to stay consideration of the petition while the motion for disqualification remained pending. The trial court apparently granted the stay, although no
{¶ 6} In its judgment entry of January 31, 2018, the trial court granted summary judgment on the petition in favor of the State. Thompson timely filed his notice of appeal to this court on March 2, 2018.
II. Analysis
{¶ 7} We address Thompson‘s assignments of error out of sequence because we find that our disposition of his second assignment is determinative of the outcome. For his second assignment of error, Thompson contends that:
[THE] TRIAL COURT ERRED WHEN DENYING [SIC] THOMPSON A HEARING ON HIS POST-CONVICTION PETITION[.]
{¶ 8} Thompson alleges that with his second trial set to begin, either the trial court or the State proposed a plea agreement whereby he would plead guilty as charged in exchange for a sentence of three years’ imprisonment.1 See Appellant‘s Br. 5-8. As he did in his petition for postconviction relief, Thompson argues that his defense counsel rendered ineffective assistance by recommending that he reject the agreement, because counsel purportedly based the recommendation on a “misguided” belief that certain
{¶ 9} We review the trial court‘s ruling on Thompson‘s petition for postconviction relief “under [the] abuse of discretion standard.” (Citation omitted.) State v. Jordan, 2d Dist. Montgomery No. 27208, 2017-Ohio-7342, ¶ 10. The term ” ‘abuse of discretion’ [is] defined as an attitude that is unreasonable, arbitrary, or unconscionable.” (Citation omitted.) Id.
{¶ 10} To prevail on a claim of “ineffective assistance of counsel, a defendant must satisfy the two-pronged test in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),” according to which the defendant bears the burden to show that: “(1) defense counsel‘s performance was so deficient that [it did not fulfill the right to assistance of counsel] guaranteed under the Sixth Amendment to the United States Constitution; and (2) * * * defense counsel‘s errors prejudiced the defendant.” State v. Cardenas, 2016-Ohio-5537, 61 N.E.3d 20, ¶ 38 (2d Dist.); State v. Wilkins, 127 Ohio App.3d 306, 310, 712 N.E.2d 1255 (2d Dist.1998), citing State v. Pankey, 68 Ohio St.2d 58, 428 N.E.2d 413 (1981); State v. Samilton, 8th Dist. Cuyahoga No. 92823, 2010-Ohio-439, ¶ 19. Judicial “scrutiny of counsel‘s performance must be highly deferential,” so “a [reviewing] court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance * * *.” Strickland at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955). To show prejudice, a defendant must demonstrate “a reasonable probability that, but for counsel‘s unprofessional errors, the result of [a given] proceeding would have been different.” Id. at 694. A failure “to make either showing defeats” the claim. Cardenas at ¶ 38.
{¶ 11} For Thompson to establish an entitlement to relief on his claim of ineffective assistance of counsel, he bears the burden to show that he was offered a plea agreement; that his defense counsel provided legally unsound advice by recommending that he reject the offer; that he would have entered into the agreement but for his counsel‘s unsound advice; that the offer would not have been withdrawn; that the trial court would have approved the agreement; and that his sentence pursuant to the agreement would have been more favorable than the sentence actually imposed by the court. See Lafler v. Cooper, 566 U.S. 156, 162-164, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012); State v. Royster, 2d Dist. Montgomery No. 26378, 2015-Ohio-625, ¶ 32-33. Thompson maintains that the 13 exhibits attached to his brief comprise evidence sufficient to meet his burden. See Appellant‘s Br. 8 and 11-12.
{¶ 12} Exhibits 1-5 and 13 to Thompson‘s brief are affidavits executed on or after February 14, 2018, yet the trial court entered the judgment from which Thompson appeals on January 31, 2018, meaning that these exhibits were not part of the record before the trial court and are, consequently, not part of the record before this court.2 Exhibit 6,
{¶ 13} A proceeding for postconviction relief is “a collateral civil attack on [a] criminal conviction” and is thus “subject to the rules of civil procedure.” State v. Harris, 8th Dist. Cuyahoga No. 94186, 2010-Ohio-3617, ¶ 7, citing State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994); see also State v. Perkins, 2d Dist. Montgomery No. 24397, 2011-Ohio-5070, ¶ 9, citing Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905. In this case, the trial court entered summary judgment in favor of the State on Thompson‘s petition. Judgment Entry 6-7; see also
{¶ 14} In contrast to the application of
{¶ 15} In Calhoun, the Ohio Supreme Court indicated that a trial court should “consider all relevant factors” in evaluating the credibility of affidavits in support of a petition for postconviction relief, including the following: “(1) whether the judge reviewing the * * * 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 [are] otherwise interested in the success of the petitioner‘s efforts, and (5) whether the affidavits contradict evidence proffered by the defense at trial.” (Citation omitted.) Id. at 285. A “trial court that discounts the credibility of sworn affidavits should include an explanation of its basis for doing so in its findings of fact and conclusions of
law, in order that meaningful appellate review may occur.” Id.; see also State v. Henry, 2017-Ohio-7427, 96 N.E.3d 1139, ¶ 20-24 (2d Dist.).
{¶ 16} Here, the trial court treated the State‘s memorandum in opposition to Thompson‘s petition for postconviction relief as a motion for summary judgment, implicating the requirements of
{¶ 17} Potentially, one or more of the Calhoun factors may apply to discount the credibility of all of Thompson‘s six supporting affidavits, but the trial court “failed to provide findings of fact and conclusions of law to explain why” it deemed the affidavits to lack credibility. Henry at ¶ 23. In the absence of any such analysis, the trial court abused its discretion by entering summary judgment in favor of the State without holding a hearing on the petition. See Calhoun at 285 and 291; Henry at ¶ 20-24; State v. Clark, 2017-Ohio-120, 80 N.E.3d 1251, ¶ 17-23 (2d Dist.). Thompson‘s second assignment of error is sustained.
CRAIG THOMPSON‘S SENTENCE IS VOID AND/OR [SIC] VOIDABLE BECAUSE HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY UNREASONABLY FAILED TO COUNSEL HIM TO ACCEPT THE STATE OF OHIO‘S OFFER OF 3 YEARS WITH JUDICIAL RELEASE PROBABILITY [SIC] AFTER 6 MONTHS IN EXCHANGE FOR HIS GUILTY PLEA[.]
{¶ 19} Our disposition of Thompson‘s second assignment of error renders his first assignment of error moot. Therefore, Thompson‘s first assignment of error is overruled.
{¶ 20} For his third assignment of error, Thompson contends that:
[THE] TRIAL COURT ERRED WHEN GRANTING [SIC] SUMMARY JUDGMENT IN FAVOR OF THE STATE WHEN [SIC] THOMPSON WAS THE PARTY ENTITLED TO SUMMARY JUDGMENT[.]4
{¶ 21} We have found that the trial court abused its discretion, under the specific circumstances of this case, by entering judgment on Thompson‘s petition without holding a hearing. As a result, Thompson‘s third assignment of error is overruled as moot.
{¶ 22} For his fourth assignment of error, Thompson contends that:
THE PROSECUTION DELIBERATELY HINDERED THOMPSON‘S RIGHT TO DUE PROCESS BY NOT SERVING HIM A COPY OF [THE] STATE‘S FILINGS[.]
{¶ 23} Here, Thompson argues that the State violated his right to due process by
{¶ 24} Thompson‘s fourth assignment of error is also rendered moot by our disposition of his second assignment of error. On remand, Thompson will have the opportunity to request that the trial court address these issues and order any relief that might be warranted.
{¶ 25} For his fifth assignment of error, Thompson contends that:
BY INITIATING THE PLEA PROCESS [SIC], THE INVOLVEMENT BY THE JUDGE IN THE PLEA NEGOTIATIONS IS IN VIOLATION OF FEDERAL AND STATE CONSTITUTIONAL GUARANTEES OF DUE PROCESS THAT DENIED [SIC] THOMPSON THE CONSTITUTIONAL RIGHT TO A FAIR TRIAL[.]
{¶ 26} Finally, Thompson argues that by “initiat[ing] the plea process,” the trial court compromised its impartiality and “subjected [him] to an unfair trial.” See Appellant‘s Br. 19. None of the evidence on record, however, establishes that the trial court proposed a plea agreement or participated in any discussions concerning a plea agreement. See id. at Exs. 7-12. Without evidence of the trial court‘s involvement, if any, in the making of the alleged offer, we cannot find that the court compromised its impartiality or that it thereby violated Thompson‘s right to a fair trial. Thompson‘s fifth assignment of error is overruled.
III. Conclusion
FROELICH, J., concurs.
HALL, J., concurring:
{¶ 28} I agree with the majority opinion, particularly its conclusion that whether a plea deal was offered to the defendant is not moot simply because the State‘s memorandum represents that no offer was made. Courts may consider factual information available by affidavit, by the trial court‘s evaluation of Appellant‘s materials, by the transcripts and the record, by the trial court‘s own recollection of what happened during the proceedings, or by other evidentiary materials of the nature ordinarily submitted in a postconviction-relief context.
{¶ 29} I do have great concerns, however, about Thompson‘s petition and his submissions when considered in the context of the record. Thompson‘s rendition of some
{¶ 30} Thompson asserts that his attorney was ineffective for telling him that “new” evidence would be inadmissible, that new testimony would not be believed, and that Thompson had been convinced by his attorney to reject a plea offer because the attorney told him the case was “winnable.” The “new” evidence consisted of text messages from witness Shai Bathini and previously unknown testimony from codefendant Brad Burns’ girlfriend, Kaitlynn Kerg. Careful review of the trial transcripts reveals the Bathini text messages were of minor significance and concerned Thompson‘s and Bathini‘s broken relationship and Thompson‘s precarious financial straits. But Kerg was expected to, and did, testify that she was with Burns and Thompson shortly before the burglary when they discussed the planning of the offense. That evidence, if believed, was particularly damaging to Thompson regarding proof of his only charge: complicity to commit burglary.
{¶ 31} The first concerning part of the petition is that this “new” evidence, which would strengthen the State‘s case, likely would not result in the State softening its position by offering a more generous plea deal. But that‘s what Thompson implied in his petition. He argued: “[T]he State made a new offer to [Defense Counsel]: In exchange for Thompson‘s plea of guilty, the State would recommend 3 years in prison with the probability of judicial release after 6 months,” and sentencing would be delayed until after Christmas so he could spend the holidays with his children. (Petition for PCR filed February 16, 2017 at 2). If the “new” evidence is a concern because it adds to and bolsters the State‘s case, there is no logical reason for the State to make a new and reduced plea offer.
{¶ 32} The second concerning issue is the purported plea offer itself. Thompson
{¶ 33} Third is the timeline of events. Kaitlynn Kerg was first listed as a State‘s witness in September 2015. Re-trial had been set for October 5, 2015. On October 1, 2015, trial counsel filed a motion to continue the October 5th trial, indicating that he
{¶ 34} The next scheduled event was a final pretrial conference set for the next Monday, November 30, 2015 at 9:30 a.m. But Thompson has not caused the submission of a transcript of that proceeding, if one exists, despite his recollection that at some time or another, “Honorable Judge Gorman stated the proposed offer on the record and requested a decision by the Defendant in open court and on the Record.” (Memorandum Contra Opposition to Post-Conviction Relief filed August 24, 2017 at p. 5). The trial began the following Monday, December 7, 2015. Nowhere in the five volumes of trial transcript
{¶ 35} It seems inconsistent that the attorney‘s reference to Kerg‘s “overwhelming” evidence also would cause counsel to suggest to Thompson that her testimony was of no consequence because she “would not be believed.” (Thompson affidavit dated January 5, 2017). Nevertheless, if there was a plea offer, was it only a representation as to sentencing from the court, or a recommendation of a reduction in the charge from the State? Both an acceptance by the court of sentencing terms and a reduction in the level of the charge by the State would have been necessary to effectuate the purported plea with the judicial-release eligibility option.
{¶ 36} Assuming that Thompson can demonstrate that a plea offer had been made, he still needs to demonstrate ineffective assistance. Undoubtedly, the Sixth Amendment right to counsel extends to plea bargaining and to the assistance of counsel on whether to accept a plea. Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). But “an erroneous strategic prediction about the outcome of a trial is not necessarily deficient performance.” Id. at 174. The only direct information in our record is what Thompson and his mother claim trial counsel told them:6 that the “new” text messages would be inadmissible, that the testimony of Kaitlynn Kerg would not be
{¶ 37} Although the circumstances I have detailed could be reasons to question Thompson‘s arguments and submissions, those determinations should be made by the trial court in the first instance. Suffice it to say I agree that the State‘s representation in its memorandum in opposition to the postconviction-relief petition that a plea offer was not made was insufficient to render that issue moot. Accordingly, I concur.
Copies mailed to:
Mathias H. Heck, Jr.
Sarah E. Hutnik
Craig Thompson
Hon. Barbara P. Gorman