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Date: 10-18-2019

Case Style:


Case Number: 2019CA00046

Judge: William B. Hoffman


Plaintiff's Attorney: RONALD MARK CALDWELL

Defendant's Attorney:

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On July 17, 2017, the Stark County Grand Jury indicted appellant on one
count of carrying a concealed weapon in violation of R.C. 2923.12 and one count of
improperly handling firearms in a motor vehicle in violation of R.C. 2923.16. On
November 20, 2017, appellant pled guilty to the handling count, and the concealed count
was dismissed. By judgment entry filed November 28, 2017, the trial court accepted
appellant's guilty plea and convicted him of said charge. By judgment entry filed January
5, 2018, the trial court sentenced appellant to three years of community control. Appellant
did not appeal his conviction or sentence.
{¶ 3} On January 31, 2019, appellant filed a petition for postconviction relief,
claiming ineffective assistance of counsel and his plea was not knowingly, voluntarily, and
intelligently made. By judgment entry filed February 27, 2019, the trial court denied the
petition, finding sufficient operative facts were not presented to support appellant's
arguments and/or establish prejudice.
{¶ 4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
{¶ 6} In his sole assignment of error, appellant claims the trial court erred in
denying his petition for postconviction relief or, at a minimum, afford him an evidentiary
hearing. We disagree.
{¶ 7} R.C. 2953.21 governs petition for postconviction relief. Subsection (D)
states the following in pertinent part:

Before granting a hearing on a petition filed under division (A) of this
section, the court shall determine whether there are substantive grounds for
relief. In making such a determination, the court shall consider, in addition
to the petition, the supporting affidavits, and the documentary evidence, all
the files and records pertaining to the proceedings against the petitioner,
including, but not limited to, the indictment, the court's journal entries, the
journalized records of the clerk of the court, and the court reporter's

{¶ 8} In State v. Jackson, 64 Ohio St.2d 107, 111, 413 N.E.2d 819 (1980), the
Supreme Court of Ohio held the following:

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.
Broad assertions without a further demonstration of prejudice do not
warrant a hearing for all post-conviction petitions. General conclusory
allegations to the effect that a defendant has been denied effective
assistance of counsel are inadequate as a matter of law to impose an
evidentiary hearing. See Rivera v. United States (C.A. 9, 1963), 318 F.2d

{¶ 9} In its judgment entry filed February 27, 2019, the trial court denied appellant
a hearing, stating the following:

R.C. 2953.21(C) permits dismissal of a petition for post-conviction
relief "without holding an evidentiary hearing where the petition, the
supporting affidavits, the documentary evidence, the files, and the records
do not demonstrate that petitioner set forth sufficient operative facts to
establish substantive grounds for relief." Here, Defendant-Petitioner's
affidavit has not alleged sufficient operative facts that would entitle
Defendant-Petitioner to an evidentiary hearing. (Citation omitted.)

{¶ 10} Based upon our review of appellant's arguments, affidavit, and documents
in support of his petition for postconviction relief, we find the trial court did not err in failing
to hold an evidentiary hearing.
{¶ 11} In his petition, appellant claimed his rights were violated due to ineffective
assistance of trial counsel causing him to enter a guilty plea which was not knowingly,
voluntarily, and intelligently made. At no time did appellant file a Crim.R. 32.1 motion to
withdraw his guilty plea.
{¶ 12} The standard this issue must be measured against is set out in State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the
syllabus. Appellant must establish the following:

2. Counsel's performance will not be deemed ineffective unless and
until counsel's performance is proved to have fallen below an objective
standard of reasonable representation and, in addition, prejudice arises
from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2
O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)
3. To show that a defendant has been prejudiced by counsel's
deficient performance, the defendant must prove that there exists a
reasonable probability that, were it not for counsel's errors, the result of the
trial would have been different.

{¶ 13} As explained by our colleagues from the Eighth District in State v. Williams,
8th Dist. Cuyahoga No. 100459, ¶ 11:

A defendant who pleads guilty waives all appealable issues,
including the right to assert an ineffective assistance of counsel claim,
except the defendant may claim ineffective assistance of counsel on the
basis that the counsel's deficient performance caused the plea to be less
than knowing, intelligent, and voluntary. In such cases, a defendant can
prevail only by demonstrating that there is a reasonable probability that, but
for counsel's deficient performance, he would not have pleaded guilty and
would have insisted on going to trial. (Citations omitted.)

{¶ 14} Appellant argued his trial counsel failed to file a motion to suppress,
declined to take the case to trial, refused to subpoena witnesses including the FBI, and
failed to advise him of his appeal rights.
{¶ 15} In its judgment entry filed February 27, 2019, the trial court denied
appellant's petition, stating the following:

Petitioner provides this Court with a conclusory assertion that his
counsel should have filed a motion to suppress. He fails to articulate what
specific evidence he believes should have been suppressed, or on what
basis such a motion should have been made. He gives this Court no reason
whatsoever to suspect that such a motion would have been successful.
"Failure to file a motion to suppress constitutes ineffective assistance of
counsel only if, based on the record, the motion would have been granted."
Petitioner has not presented any evidence that such a motion would have
been granted, and thus, has failed to demonstrate that he was prejudiced
by the alleged ineffective assistance.
The Court concludes that the petition and the files and records of the
case show that Defendant-Petitioner is not entitled to relief. See R.C.
2953.21(E). Specifically, Defendant-Petitioner has not submitted
"evidentiary documents containing sufficient operative facts to demonstrate
the lack of competent counsel and that the defense was prejudiced by
counsel's ineffectiveness." (Citations omitted.)

{¶ 16} The trial court noted appellant signed a Crim.R. 11 plea form on November
20, 2017, wherein he acknowledged he understood he had the "right to appeal a
maximum prison term or if the sentence is contrary to law, and that any appeal must be
filed within 30 days of my sentence." Appellant was not sentenced to a prison term, but
was sentenced to three years of community control. Appellant also acknowledged that
he understood he was waiving his right to a trial and his right to subpoena witnesses in
his favor, and his counsel "has effectively and diligently represented me."
{¶ 17} A review of appellant's petition indicates he did not assert what he wanted
suppressed, what the grounds would have been for the suppression motion, and what
facts would have supported the motion. Appellant did not specify what witnesses his
counsel refused to subpoena and what their proposed testimony would have been.
Appellant retained his own counsel and at no time prior to plea and sentence did appellant
request new counsel because his counsel declined to take the case to trial. During the
plea hearing, appellant acknowledged that he understood his right to have the case tried
and he understood he was waiving that right. November 20, 2017 T. at 6-7. He agreed
his counsel handled his case "in a conscientious and diligent fashion." Id. at 10. Appellant
did not present substantive grounds for relief.
{¶ 18} Upon review, we find the trial court did not err in not holding an evidentiary
hearing and in denying appellant's petition for postconviction relief.
{¶ 19} The sole assignment of error is denied.

Outcome: The judgment of the Court of Common Pleas of Stark County, Ohio is
hereby affirmed.

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