STATE OF OHIO, Plaintiff-Appellee, vs. JACK WEST, Defendant-Appellant.
APPEAL NO. C-150587; TRIAL NO. B-9001777-A
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
June 30, 2017
2017-Ohio-5596
MYERS, Judge.
Criminal Appeal From: Hamilton County Court of Common Pleas. Judgment Appealed From Is: Affirmed in Part and Reversed in Part, and Cause Remanded.
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Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Brian Scott Hicks, for Defendant-Appellant.
{¶1} Defendant-appellant Jack West appeals the Hamilton County Common Pleas Court‘s judgment overruling his
{¶2} In 1990, West was indicted on eight counts of rape. The offenses were alleged to have occurred between 1984 and 1987. The alleged victim, West‘s son Jason, was during those years, under the age of 13. Jason reported the offenses in 1989. But West had left the country in 1988 and did not learn of the indictment until late 1990. West then waived extradition, but the Hamilton County Prosecuting Attorney did not seek to extradite him, and his finances prevented him from returning to the United States until May 1997.
{¶3} In February 1998, West entered guilty pleas to four reduced charges of sexual battery and was sentenced to agreed concurrent terms of confinement of two years on each count. In the same proceeding, West also entered guilty pleas to three counts of intimidation, charged in a separate indictment in the case numbered B-9800303. For the intimidation offenses, the court imposed consecutive four-to-ten-year prison terms, suspended those sentences, and placed West on probation for five years, beginning upon his release from prison on the sexual-battery charges. Three days later, the trial court adjudicated West an habitual sexual offender under the version of
{¶4} In his direct appeal, we affirmed West‘s convictions, but reversed his habitual-sexual-offender adjudication. State v. West, 134 Ohio App.3d 45, 730 N.E.2d 388 (1st Dist.1999). On remand, the trial court determined that West was a sexually-oriented offender, requiring him to register annually as a sex offender for a period of ten years following his release from prison.
{¶5} In September 2015, West filed with the common pleas court a motion to withdraw his guilty pleas, along with a motion to appoint counsel to assist him in withdrawing his pleas, on the grounds that his trial counsel had been constitutionally ineffective in advising him to plead, and that he is actually innocent of sexual battery. In this appeal, he advances a single assignment of error, contending that the common pleas court abused its discretion in overruling his motion to withdraw his pleas without a hearing. The challenge is well taken in part.
Common Pleas Court‘s Jurisdiction to Entertain the Motion
{¶6} West did not designate in his motion a statute or rule under which he sought relief. But he argues on appeal that he was entitled to relief under
{¶7} On appeal, the state, citing Special Prosecutors v. Judges, 55 Ohio St.2d 94, 378 N.E.2d 162 (1978), argues that the common pleas court should have dismissed West‘s
{¶8} Special Prosecutors and Davis. In Special Prosecutors, the Ohio Supreme Court granted a writ of prohibition to prevent a trial court from proceeding to trial after granting a
{¶9} In State ex rel. Cordray v. Marshall, 123 Ohio St.3d 229, 2009-Ohio-4986, 915 N.E.2d 633, the Supreme Court cited Special Prosecutors, but relied on the doctrine of the law of the case to hold that the common pleas court had lacked jurisdiction to grant a postconviction motion pursuant to
{¶10} In State v. Davis, 131 Ohio St.3d 1, 2011-Ohio-5028, 959 N.E.2d 516, the Supreme Court addressed whether, in light of Special Prosecutors, a lower court has jurisdiction to entertain a
{¶11} With respect to its decision in Special Prosecutors, the court in Davis stated that, while the doctrine of the law of the case was not the basis for its decision in Special Prosecutors, that doctrine would not prevent the trial court, in entertaining Davis‘s
{¶12} We have, before and since Davis, consistently permitted a lower court to entertain a
{¶13} The other appellate districts that have addressed this issue essentially fall into two camps: those that read Davis restrictively to apply to only
{¶14} In State v. Crangle, 9th Dist. Summit No. 25735, 2011-Ohio-5776, the Ninth Appellate District applied Special Prosecutors to hold that, after Crangle‘s conviction had been affirmed on direct appeal, the common pleas court had no jurisdiction to entertain his
{¶15} The Third Appellate District in State v. Panning, 3d Dist. Van Wert No. 15-15-11, 2016-Ohio-3284, and the Eighth Appellate District in State v. Moon, 8th Dist. Cuyahoga No. 101972, 2015-Ohio-1550, applied Special Prosecutors to hold that the common pleas court had no jurisdiction to entertain
{¶16} The Second and Seventh Appellate Districts have read Davis as an explanation of the rule of Special Prosecutors. See State v. Lauharn, 2d Dist. Miami No. 2011 CA 10, 2012-Ohio-1572; State v. Staffrey, 7th Dist. Mahoning Nos. 10 MA 130 and 10 MA 131, 2011-Ohio-5760.
{¶17} In Staffrey, the Seventh District rejected the state‘s argument that, under the rule of Special Prosecutors, the common
{¶18} In Lauharn, the defendant appealed from the overruling of his motion to withdraw his guilty pleas. Applying the rule in Special Prosecutors, the Second District dismissed the appeal, because the common pleas court lacked jurisdiction to entertain Lauharn‘s
{¶19} We believe that for purposes of providing a means for advancing a claim of actual innocence based on evidence outside the record on appeal, the distinction between a “posttrial”
{¶20} We are, therefore, not persuaded that the statement in Davis concerning the role of “posttrial motions” can be so narrowly parsed as to confine the case‘s holding to postconviction motions challenging convictions resulting from a trial. Rather, we agree with the Second and Seventh Appellate Districts that the
{¶21} The court below had jurisdiction to entertain West‘s
{¶22} Accordingly, we hold that the common pleas court had jurisdiction to entertain the motion.
West‘s Crim.R. 32.1 Motion
{¶23} Turning to West‘s challenge on appeal to the overruling of his
{¶24} Ineffective-counsel claim. In his motion, West essentially argued that his pleas had been the unknowing product of his trial counsel‘s ineffectiveness, because he did not learn until after he had “settled” in Florida in 2005 that his sexual-battery convictions, which under Megan‘s Law had subjected him to only a ten-year registration obligation, subjected him to a lifetime-registration requirement in Florida. To prevail on his ineffective-counsel claim, West bore the burden of demonstrating that his counsel‘s performance had been deficient in the sense that it was not reasonable under the circumstances, Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and that there was a reasonable probability that, but for this deficiency, he would not have pled guilty, but would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); State v. Xie, 62 Ohio St.3d 521, 524, 584 N.E.2d 715 (1992).
{¶25} We note that Megan‘s Law‘s registration and notification requirements are nonpunitive, collateral consequences of a conviction. State v. Cook, 83 Ohio St.3d 404, 423, 700 N.E.2d 570 (1998). For that
{¶26} With his
{¶27} At his plea hearing, West made plain his intention to relocate to Florida following his release from prison, when he asked for, and received from the state, a recommendation that he serve for his intimidation offenses “a normal kind of probation * * * which could be transferred down [to Florida],” where his mother resided. The record may also be said to suggest that West would not have pled if he had known of Florida‘s lifetime registration requirement, because at his sex-offender hearing, conducted three days after he had entered his guilty pleas, he orally moved to withdraw his guilty pleas on the ground that his trial counsel had failed to advise him that he would be subject to Ohio‘s ten-year sex-offender-registration requirement.
{¶28} West assigned as error in his direct appeal the overruling of that motion, and we held that the court had not abused its discretion. We noted that, at the sex-offender hearing, West‘s counsel, who had also represented him at his plea hearing, denied telling him that Megan‘s Law did not apply to him. And we concluded that, in the absence of any “indication” that counsel had given “improper legal advice,” West had failed to demonstrate a manifest injustice. West, 134 Ohio App.3d at 51, 730 N.E.2d 388.
{¶29} The challenge to trial counsel‘s effectiveness presented by West in his 2015 motion to withdraw his guilty pleas suffers from the same infirmity: he did not support his claim with an affidavit averring, or some other evidentiary material demonstrating, that his counsel had failed to advise him concerning Florida‘s sex-offender-registration requirement. Implicit in the common pleas court‘s judgment denying West relief under
{¶30} Actual-innocence claim. West‘s claim that he is actually innocent of the sexual-battery charges to which he had pled was supported with evidentiary material that, if accepted as true, would require the withdrawal of his pleas. We, therefore, conclude that the court abused its discretion in denying relief under
{¶31} In support of his actual-innocence claim, West offered the affidavit of his son Jason West, who averred that he had “NEVER been molested and/or touched in any form, type or manner sexually by [his] father,” and that he had “NEVER” witnessed “speech or behavior * * * of [his father] indicat[ing] any type, form or manner of any sexual interest in [him].” Thus, West‘s actual-innocence claim may fairly be read to allege that his guilty pleas were not voluntarily entered, because he had felt compelled to accept a plea agreement offering reduced charges and agreed sentences based on his fear that his son would falsely testify against him and he would be convicted of multiple counts of rape if he insisted on going to trial.
{¶32} Throughout the proceedings resulting in his convictions, West consistently maintained that he was innocent of any sex offense involving his son. At the hearing on his motion to dismiss his rape indictment on speedy-trial grounds, West stated that when he learned that there was a “warrant out for [his] arrest, on charges that [he] was not guilty of * * * [he] wanted to go back [to the United States] and clear [his] name.”
{¶33} At West‘s plea hearing, the assistant prosecuting attorney stated that Jason West, who was by then an adult, was present at the hearing, and that Jason and his mother had “both indicated that [the plea agreement was] a satisfactory way to resolve the case.” But West expressed discomfort with pleading guilty to sexual battery and persisted in proclaiming his innocence. When asked during the
{¶34} Before he was sentenced, West again insisted that he “didn‘t molest [his] son.” He then went on to affirm his understanding of his guilty pleas, but added that “circumstances here force me to enter this plea rather than stand trial and risk being wrongfully convicted on bad faith charges that carry severe penalties.”
{¶35} Three days later, at his sex-offender hearing, West orally moved to withdraw his guilty pleas. He alleged not only that his trial counsel had misinformed him about Megan‘s Law, but that his pleas had been “the result of coercion and intimidation, pressure, threats, et cetera, an Alford plea.”
{¶36} West continued to proclaim his innocence in his direct appeal. As we noted, he unsuccessfully challenged the overruling of his oral motion to withdraw his pleas, made at his sex-offender hearing. He also submitted, and we overruled, an assignment of error challenging his guilty pleas on the grounds that they were not voluntary, that trial counsel had been ineffective
{¶37}
{¶38} In deciding a
{¶39} Rejecting West‘s actual-innocence claim without an evidentiary hearing necessarily required the common pleas court to wholly discount the credibility of Jason West‘s affidavit exonerating his father. But the common pleas court judge who reviewed West‘s
{¶40} And we conclude that the court abused its discretion in deciding West‘s
We Affirm in Part and Reverse in Part
{¶41} In the unique circumstances presented in this case, including West‘s conviction upon Alford pleas, we hold that the common pleas court abused its discretion in deciding without an evidentiary hearing the claim of actual innocence based on newly discovered evidence advanced in his
Judgment accordingly.
CUNNINGHAM, P.J., and DETERS, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.