STATE OF OHIO v. TERRANCE MITCHEL

Cleveland, Ohio- Criminal defense attorney represented Terrance Mitchell with appealing the denial of his petition for postconviction relief.

Mitchell pleaded guilty to multiple counts of pandering sexually

oriented matter involving a minor, illegal use of a minor in nudity-oriented material

or performance, and possessing criminal tools. He was sentenced to a 12-year

aggregate term of imprisonment. State v. Mitchell, 8th Dist. Cuyahoga No. 107242,

2019-Ohio-1357, ¶ 1, 4. After his direct appeal, Mitchell filed an application for

reopening pursuant to App.R. 26(B), in part claiming that his appellate counsel was

ineffective for failing to advance a claim of ineffective assistance of trial counsel that

rendered Mitchell's plea involuntary. State v. Mitchell, 8th Dist. Cuyahoga No.

107242, 2019-Ohio-4256, ¶ 5. The panel concluded that Mitchell's guilty plea was

knowingly, intelligently, and voluntarily entered. Id. at ¶ 6. During that same time,

Mitchell also filed a Crim.R. 32.1 motion to withdraw his guilty plea, which was

denied on the basis that his guilty plea had been affirmed on appeal — an act

depriving the trial court of jurisdiction to grant Mitchell's motion to withdraw his

guilty plea. State v. Mitchell, 8th Dist. Cuyahoga No. 109178, 2020-Ohio-3726, ¶ 7,

citing State v. Grant, 8th Dist. Cuyahoga No. 107499, 2019-Ohio-796, ¶ 14, and

State ex rel. Special Prosecutors v. Judges, Belmont Cty. Court of Common Pleas

Judges, 55 Ohio St.2d 94, 97-98, 378 N.E.2d 162 (1978).

In addition to those attempts to withdraw his guilty plea, Mitchell also

filed a timely petition for postconviction relief, in which he claims his trial counsel

was ineffective for providing the prosecutor with erroneous information regarding

Mitchell's marriage and for failing to raise issues with the inventory sheets generated

after a search warrant was executed at Mitchell's residence. Mitchell claims his

signature was forged and that a handwritten entry was added after he received an

unsigned copy. In light of those allegations, Mitchell claims his guilty plea was

invalid and his convictions should be vacated.

The law is well settled. "The postconviction relief process is a civil

collateral attack on a criminal judgment, in which the petitioner may present

constitutional issues to the court that would otherwise be impossible to review

because the evidence supporting the issues is not contained in the record of the

petitioner's criminal conviction.” State v. Curry, 8th Dist. Cuyahoga No. 108088,

2019-Ohio-5338, ¶ 12, citing State v. Calhoun, 86 Ohio St.3d 279, 281, 1999-Ohio102, 714 N.E.2d 905, and State v. Carter, 10th Dist. Franklin No. 13AP-4, 2013-

Ohio-4058, ¶ 15. "[C]ourts are not required to hold a hearing in every postconviction

case.” (Citations omitted.) State ex rel. Madsen v. Jones, 106 Ohio St.3d 178, 2005-

Ohio-4381, 833 N.E.2d 291, ¶ 10. Before granting a hearing on a petition for

postconviction relief, "the court shall determine whether there are substantive

grounds for relief.” R.C. 2953.21(D). "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 * * *.” Id.

A trial court's ruling on a petition for postconviction relief is reviewed

for an abuse of discretion. Curry at ¶ 15, citing State v. Gondor, 112 Ohio St.3d 377,

2006-Ohio-6679, 860 N.E.2d 77, ¶ 45. "The trial court does not abuse its discretion

in dismissing a petition without a hearing if (1) the petitioner fails to set out

sufficient operative facts to establish substantive grounds for relief, or (2) the

operation of res judicata prohibits the claims made in the petition.” Id., citing State

v. Abdussatar, 8th Dist. Cuyahoga No. 92439, 2009-Ohio-5232, ¶ 15. In this case,

Mitchell failed to demonstrate sufficient operative facts to establish that his

counsel's allegedly deficient performance negatively impacted Mitchell's decision to

plead guilty. Although Mitchell's challenge to the knowing, voluntary, and

intelligent nature of his guilty plea is likely precluded under the operation of res

judicata, in light of the earlier panel's conclusion to the contrary, we need not

address this concern. Mitchell failed to set forth sufficient operative facts to

establish grounds for relief.

As it pertains to Mitchell's alleged constitutional claims against his

guilty plea, "[a] defendant has the ultimate authority to decide whether to plead

guilty.” State v. Grate, Slip Opinion No. 2020-Ohio-5584, ¶ 121, citing Florida v.

Nixon, 543 U.S. 175, 187, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004). In order to

demonstrate ineffective assistance related to a decision to plead guilty, and thus rise

to the level of a constitutional violation for the purposes of the postconviction relief

statute, a defendant "must show that there is a reasonable probability that but for

counsel's errors, he would not have pleaded guilty and would have insisted on going

to trial.” Id., citing State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855

N.E.2d 48, ¶ 89, citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d

203 (1985). The only two issues identified by Mitchell in the petition for

postconviction relief relate to an inventory of a search conducted at the time of

Mitchell's arrest and certain statements about Mitchell's marriage and other

background information presented to the prosecutor during the pretrial

proceedings.

With respect to the inventory sheets, Mitchell was aware of the issue

before he pleaded guilty. In fact, Mitchell expressly claims that he provided his trial

counsel with a copy of the disputed inventory sheets, and more to the point, "shared

the details” of the issues with the inventory sheets with trial counsel several times.

Mitchell has not explained how the inventory sheets impeded his knowingly,

voluntarily, or intelligently entering his guilty plea, nor has he provided any

indication that his trial counsel erroneously advised Mitchell of the consequences of

such an error. Even if, for the sake of discussion, we presume the inventory sheets

somehow impacted his decision to plead guilty, Mitchell was aware of the potential

issues with the inventory sheets and disclosed those issues to his trial counsel before

deciding to plead guilty.

It necessarily follows that even if we concluded that trial counsel's

performance was deficient for failing to pursue arguments based on the inventory

sheets, Mitchell has not demonstrated that but for such an error, he would have

declined the plea deal and proceeded to trial. Mitchell was aware of the alleged

defect in the inventory sheets at the time he entered his guilty plea, shared his

concerns with trial counsel, and still decided against trial — a decision that solely

rests with the defendant. Grate at ¶ 121. Further, Mitchell has failed to explain how

any error with trial counsel's presentation of Mitchell's biographical information to

the prosecutor impacted Mitchell's decision to plead guilty. App.R. 16(A)(7).

We are unable to conclude that the trial court erred in denying

Mitchell’s petition for postconviction relief without a hearing. Mitchell failed to

demonstrate any substantive ground for relief. Accordingly, we overrule the sole

assignment of error and affirm