State of Ohio, Plaintiff-Appellee, v. Jordyn Wade, Defendant-Appellant.
No. 20AP-456
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
November 23, 2021
[Cite as State v. Wade, 2021-Ohio-4090.]
MENTEL, J.
(C.P.C. No. 15CR-6266) (REGULAR CALENDAR)
NUNC PRO TUNC1
Rendered on November 23, 2021
On brief: G. Gary Tyack, Prosecuting Attorney, and Seth L. Gilbert, for appellee. Argued: Seth L. Gilbert.
On brief: Anzelmo Law, and James A. Anzelmo, for appellant. Argued: James A. Anzelmo.
APPEAL from the Franklin County Court of Common Pleas
MENTEL, J.
{¶ 1} Defendant-appellant, Jordyn Wade, appeals from the decision of the Franklin County Court of Common Pleas denying his petition for postconviction relief under
I. Factual and Procedural Background
{¶ 2} Three weeks before his 17th birthday, Wade participated in a quadruple homicide resulting in “jury verdicts finding him guilty of multiple counts of aggravated murder, murder, attempted murder, aggravated burglary, aggravated robbery, kidnapping,
{¶ 3} At the resentencing, Wade again received a prison term of 172 and one-half years. (June 13, 2019 Am. Jgmt. Entry.) He appealed, arguing that a life sentence without parole violated the prohibitions on cruel and unusual punishment of the Eighth Amendment to the United States Constitution and Article I, Section 9 of the Ohio Constitution because the trial court failed to comply with Long‘s requirement to consider the juvenile offender‘s youth as a mitigating factor. State v. Wade, 10th Dist. No. 19AP-350, 2020-Ohio-5399, ¶ 6 (”Wade II“). After reviewing the resentencing transcript, we acknowledged that “the trial court‘s findings are limited and do not explain how Wade‘s youth and his environment during his childhood, growth, and development shaped him, nor do they specifically state whether Wade‘s actions demonstrated a permanent condition or were instead a juvenile response that Wade would in time abandon.” Id. at ¶ 8. Nevertheless, we concluded that the trial court‘s efforts were constitutionally adequate and complied with Long because it had:
[R]ecounted on the record how Wade‘s juvenile record began early, how the severity of his offenses increased at a dramatic rate, and how he had already received substantial unsuccessful treatments in the juvenile system. The court‘s findings further establish that Wade did not suffer abuse or otherwise have a home environment that would offer some explanation for his actions, that he willfully encouraged his codefendant to kill the four victims, and that he showed a total lack of remorse for his crimes. [The controlling caselaw does] not require sentencing courts to reject life sentences for juvenile offenders convicted of homicide; they simply require trial courts to account for the youth of juveniles as a mitigating factor when sentencing for murder. Here, the trial court specifically stated that it had evaluated the defendant‘s youth and determined that an effective life without parole sentence of 172 1/2 years to life was appropriate punishment. We do not believe that caselaw required the trial court to do more than
that, even if it would be a better practice to do so. Accordingly, we conclude that the trial court did not err in its sentence, and that Wade‘s rights under the U. S. Constitution and the Ohio Constitution to be free of cruel and unusual punishment were not violated.
Id.
{¶ 4} In the direct appeal from his resentencing, Wade also raised the issue before us now, the allegation of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). However, at that time, we held that the issue was not fully reviewable:
Wade argues that his counsel‘s failure to consider requesting a mitigation expert was ineffective assistance. But Wade cannot demonstrate prejudice under Strickland based on the record before us—even assuming his counsel was deficient in not requesting a mitigation expert or psychological expert, we have no record as to what that expert‘s testimony might have been, or whether such evidence would have or should have affected the trial court‘s analysis in any way. Such “off-the-record” claims are appropriately pursued by the filing of a petition for postconviction relief filed under
R.C. 2953.21 rather than a direct appeal.
Wade II at ¶ 9.
{¶ 5} To raise the ineffective assistance of counsel claim, Wade filed a petition for postconviction relief under
{¶ 6} Citing these facts, Wade argued that he had received ineffective assistance of counsel at his resentencing hearing in violation of the
{¶ 7} The trial court denied Wade‘s petition, largely on the basis that he had failed to show prejudice under Strickland. (Sept. 3, 2020 Decision and Jgmt. Entry.) The trial court noted that it had reviewed the presentence investigation that contained information on Wade‘s “background, including his childhood, home life, and mental health history” prior to resentencing and had “expressly considered the factors discussed in Long.” Id. at 5. It rejected Wade‘s “assertion that counsel could have called witnesses or retained expert witnesses” because the petition provided no evidence “as to what the hypothetical witnesses would have shown. Therefore, this argument is speculative and does not establish ineffective assistance.” Id. at 6, citing State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641. Thus, Wade had “failed to prove that there [was] a reasonable probability that, but for counsels’ errors, the outcome would have been different.” Id. In addition, the trial court rejected Wade‘s assertion that his counsel‘s performance was deficient, stating only that “the State‘s arguments related to the first prong” under Strickland “were persuasive.” Id. at 7. Finally, the trial court ruled that a hearing on Wade‘s petition was “not necessary” because the petition and its supporting documentation failed to “set forth operative facts to establish” prejudice under Strickland. Id. at 6.
{¶ 8} Wade appeals and asserts the following assignments of error:
- [1.] The trial court erred by denying and dismissing Wade‘s petition for post-conviction relief without holding an evidentiary hearing.
- [2.] The trial court erred by denying and dismissing Wade‘s petition for post-conviction relief by summarily denying his request for an evidentiary hearing.
II. Standard of Review
{¶ 9} “[A] trial court‘s decision granting or denying a postconviction petition filed pursuant to
III. Analysis
{¶ 10} Under
{¶ 11} The postconviction relief statute “does not expressly mandate a hearing for every post-conviction relief petition and, therefore, a hearing is not automatically required.” State v. Jackson, 64 Ohio St.2d 107, 110 (1980). Rather, “[b]efore granting a hearing on a petition * * *, the court shall determine whether there are substantive grounds for relief.”
{¶ 12} Wade‘s postconviction petition asserted that he received ineffective assistance of counsel during the resentencing. A defendant claiming ineffective assistance of counsel must show both that “(1) defense counsel‘s performance was so deficient that he or she was not functioning as the counsel guaranteed under the
{¶ 13} In support of his first assignment of error, Wade argues that the trial court erred by denying his petition for postconviction relief without holding a hearing. Citing State v. Molton, 8th Dist. No. 43661, 1982 WL 2316 (Jan. 28, 1982), he asserts that his “allegations of ineffective assistance of counsel, under the Sixth Amendment, were neither broad nor conclusory” because he “raise[d] specific contentions pertaining to his trial counsels’ failure to investigate and present mitigating evidence” at the resentencing. (Appellant‘s Brief at 5.)
{¶ 14} In Molton, the Eighth District Court of Appeals reversed a trial court‘s denial of a defendant‘s pro se petition for postconviction relief filed nearly four years after he had entered guilty pleas to multiple counts of aggravated robbery and kidnapping. The petitioner alleged that “his guilty pleas were neither knowingly nor intelligently made, due to a promise made to him by his counsel that upon his pleading no contest he would receive probation, be made to pay a fine, and/or receive treatment for his drug dependency.” Id. at * 1. The court found that these allegations fell within the following holding of State v. Milanovich, 42 Ohio St.2d 46 (1975), paragraph one of the syllabus:
Where a claim raised by a petition for postconviction relief under
R.C. 2953.21 is sufficient on its face to raise an issue that petitioner‘s conviction is void or voidable on constitutional grounds, and the claim is one which depends upon factual allegations that cannot be determined by examination of the files and records of the case, the petition states a substantive ground for relief.
{¶ 15} Because there was “no direct evidence which rebutted” the defendant‘s allegation that his guilty pleas had been “induced by his counsel‘s promise regarding his sentence,” the Molton court reversed and remanded for a hearing on the petition. Id. at * 3-4.
{¶ 16} For several reasons, Molton does not support Wade‘s claim that he was entitled to a hearing on his postconviction petition. First, Wade‘s ineffective assistance of counsel argument does not arise from the particular circumstance that Molton and Milanovich recognized as probably impossible for a petitioner to prove: private conversations with counsel preceding a plea colloquy that allegedly induced an involuntary guilty plea. Second, courts have recognized that the passage of
{¶ 17} In addition, Wade misreads Molton when he argues that a petitioner with allegations that are “neither broad nor conclusory” is entitled to a hearing. Molton at * 4.
{¶ 18} The standard that does apply to Wade‘s petition can also be found in Jackson: “Before a hearing is granted, the petitioner bears the initial burden in a post-conviction proceeding to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and also that the defense was prejudiced by counsel‘s ineffectiveness.” Id. See also Calhoun at paragraph two of the syllabus; Cole at 114. It is this standard that the trial court applied and that Wade has not met. To address the performance prong under Strickland, Wade submitted some evidence of a troubling lack of preparation by his counsel. The Franklin County Inmate Visitation Schedule attached to his petition supports his assertion that his first attorney visited him only once during the first nine months that he was in the facility awaiting resentencing, as well as his assertion that his subsequent attorney only visited once prior to resentencing. The resentencing transcript confirms the attorney‘s single visit and supports Wade‘s complaints of a general lack of preparation for the hearing.
{¶ 19} In spite of these concerns, however, Wade‘s petition fails to demonstrate the prejudice Strickland requires. Wade‘s major complaint is the lack of mitigating evidence presented at his resentencing. However, “the mere failure to present mitigating evidence * * * does not itself constitute proof of ineffective assistance of counsel or deprivation of the accused‘s right to a fair trial.” State v. Johnson, 24 Ohio St.3d 87, 91 (1986) (further reasoning that “the omission of such evidence in an appropriate case could be in response to the demands of the accused or the result of a tactical, informed decision by counsel,
{¶ 20} In the second assignment of error, Wade argues that the trial court erred when it “summarily denied” his petition. (Appellant‘s Brief at 7.) In his view, the trial court “did not elaborate on why it concluded that Wade failed to set forth operative facts” to support his claim. Id.
{¶ 21} We read Wade‘s assignment of error as arguing that the trial court‘s ruling was inadequate under
{¶ 22} Having overruled appellant‘s two assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and SADLER, JJ., concur.
MENTEL
JUDGE