Opinion
C. A. 2022-CA-87
07-07-2023
STATE OF OHIO Appellee v. JOSHUA THOMPSON Appellant
ANDREW P. PICKERING & TRACY LOCKHART-WILLIAMS, Attorneys for Appellee L. PATRICK MULLIGAN & FRANK M. BATZ, Attorneys for Appellant
Criminal Appeal from Common Pleas Court Trial Court Case No. 21-CR-0408(G)
ANDREW P. PICKERING & TRACY LOCKHART-WILLIAMS, Attorneys for Appellee
L. PATRICK MULLIGAN & FRANK M. BATZ, Attorneys for Appellant
OPINION
HUFFMAN, J.
{¶ 1} Joshua Thompson appeals from a judgment of the Clark County Court of Common Pleas, which denied his petition for postconviction relief. In 2021 after he pled guilty to one count of engaging in a pattern of corrupt activity (Count 1); three counts of aggravated trafficking in drugs, the first of which was accompanied by a specification that the offense occurred in the vicinity of a school or a juvenile (Counts 99, 102, and 107); and one count of having weapons while under disability (Count 111). Thompson was sentenced to an agreed indefinite sentence totaling 19 years to 22 years. He argued in the petition that he had received ineffective assistance of counsel due to trial counsel's alleged failure to advise him of the evidence against him and of potential defenses. For the reasons that follow, we conclude that the trial court did not abuse its discretion in denying Thompson's petition for postconviction relief, and the judgment of the trial court is affirmed.
Facts and Procedural History
{¶ 2} Thompson was indicted on 13 counts as part of an indictment addressing over 100 counts and numerous defendants. He entered guilty pleas pursuant to a plea agreement on November 29, 2021. The terms of the plea agreement were that Thompson would plead guilty to engaging in a pattern of corrupt activity, three counts of aggravated trafficking in drugs, and having weapons while under disability, in exchange for which the State would dismiss the other charges against him. The parties made a joint recommendation that Thompson would serve an aggregate sentence of 19 to 22 years, and the court imposed the agreed sentence.
{¶ 3} Thompson filed a petition for postconviction relief on July 22, 2022, and an amended petition on August 11, 2022. In his petitions, Thompson argued that his plea had not been knowing, intelligent, and voluntary due to ineffective assistance of counsel, specifically trial counsel's alleged failure to provide Thompson with the evidence against him, including the discovery packet, and to consider any potential defenses. Thompson requested an evidentiary hearing. The court denied the petition without a hearing on November 4, 2022.
Arguments and Analysis
{¶ 4} Thompson asserts the following assignment of error:
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN DENYING APPELLANT'S PETITION FOR POST-CONVICTION RELIEF ON GROUNDS OF THE INEFFECTIVE ASSISTANCE OF COUNSEL.
{¶ 5} Thompson argues that the trial court erred in denying his petition and his request for a hearing. He asserts that trial counsel failed to inform him of the evidence against him and that, as such, his pleas were not knowing, intelligent, and voluntary. According to Thompson, defense counsel only spoke to him three times before the plea hearing, failed to provide him with the discovery packet, and failed to advise him of any potential defenses, trial strategies, or alternatives to accepting the plea agreement. Thompson contends that there is a reasonable probability that, had he reviewed the discovery packet, he would not have entered his pleas and instead would have insisted on going to trial. He asserts that he did not understand the nature of the charges to which he pled guilty. The State responds that the trial court did not commit prejudicial error in denying Thompson's petition for postconviction relief.
{¶ 6} R.C. 2953.21 governs petitions for post-conviction relief. R.C. 2953.21(A)(1)(a) provides:
A person in any of the following categories may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other
appropriate relief:
(i) Any person who has been convicted of a criminal offense * * * and who claims there was such a denial or infringement of the person's rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States.
{¶ 7} "A petition for 'postconviction relief is a means by which the petitioner may present constitutional issues to the court that would otherwise be impossible to review because the evidence supporting those issues is not contained in the record of the petitioner's criminal conviction.'" State v. Mott, 2d Dist. Clark No. 2021-CA-63, 2022-Ohio-2894, ¶ 10, quoting State v. Monroe, 2015-Ohio-844, 29 N.E.3d 391, ¶ 37 (10th Dist.). The postconviction relief process is a civil collateral attack on a criminal judgment and is not an appeal of the judgment. State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999).
{¶ 8} "To establish ineffective assistance of counsel, a defendant must demonstrate both that the trial counsel's conduct fell below an objective standard of reasonableness and that the errors were serious enough to create a reasonable probability that, but for the errors, the outcome of the case would have been different." State v. Thompson, 2d Dist. Montgomery No. 28449, 2019-Ohio-5140, ¶ 24, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989). A postconviction relief petitioner asserting ineffective assistance of counsel" 'bears the initial burden to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and that the defense was prejudiced by counsel's ineffectiveness.'" State v. Kapper, 5 Ohio St.3d 36, 38, 448 N.E.2d 823 (1983), quoting State v. Jackson, 64 Ohio St.2d 107, 413 N.E.2d 819 (1980), syllabus; Thompson at ¶ 26." '[W]here 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,'" a trial court may dismiss the petition without a hearing. Calhoun, paragraph two of the syllabus.
{¶ 9} "[A] trial court has the discretion to weigh the credibility of any affidavits submitted with the petition" when deciding whether to dismiss the petition without a hearing. Calhoun at 284. In general, "self-serving affidavits submitted by a defendant in support of his claim for postconviction relief are insufficient to trigger the right to a hearing or to justify granting the petition under R.C. 2953.21." State v. Clark, 2017-Ohio-120, 80 N.E.3d 1251, ¶ 20, citing Kapper at 38. (Other citation omitted). While we acknowledge that each affidavit submitted in support of a postconviction relief petition is to some degree self-serving," 'such affidavits should not lightly be deemed false as they are by definition a statement that the affiant has sworn to be truthful and made under penalty of perjury.'" Id., quoting State v. Padgett, 2d Dist. Montgomery No. 17658, 1999 WL 1127398, *3 (Dec. 10, 1999), citing Calhoun. "Nevertheless, 'the trial court may, under appropriate circumstances in postconviction relief proceedings, deem affidavit testimony to lack credibility without first observing or examining the affiant.'" Id., quoting Calhoun.
{¶ 10} Calhoun set forth the following relevant factors to be considered in assessing the credibility of affidavits:
(1) whether the judge reviewing the postconviction relief 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 otherwise interested in the success of the petitioner's efforts, and (5) whether the affidavits contradict evidence proffered by the defense at trial. Moreover, a trial court may find sworn testimony in an affidavit to be contradicted by evidence in the record by the same witness, or to be internally inconsistent, thereby weakening the credibility of that testimony.Id. at 285.
{¶ 11} "We review a trial court's denial of post-conviction relief under R.C. 2953.21 for an abuse of discretion * * *." State v. White, 118 Ohio St.3d 12, 2008-Ohio-1623, 885 N.E.2d 905, ¶ 45. "The term 'abuse of discretion' has been defined as a decision that is unreasonable, arbitrary, or unconscionable." (Citation omitted.) State v. Howard, 2d Dist. Montgomery No. 26060, 2014-Ohio-4602, ¶ 8.
{¶ 12} In overruling Thompson's petition, the trial court found all five factors set forth in Calhoun to be present. The judge had presided over the change of plea hearing and sentencing, and Thompson relied on his own affidavit and that of his father, Timothy Thompson. The court concluded that the two affidavits appeared to have been written by the same person, but this fact did not weigh on the court's assessment of the affidavits' credibility.
{¶ 13} Regarding Timothy's affidavit, the court noted that paragraph four began "Joshua Thompson expressed to me * * *"; thus, the court found that the paragraph relied on hearsay evidence. The court indicated that it gave no weight to any hearsay evidence in the affidavit.
{¶ 14} The court also found that paragraphs four and five of Timothy's affidavit "reveal bias, interest, and/or denial." It was significant to the trial court that due to the father-son relationship, Timothy was "obviously interested in the success of his son's motion." The court noted that Timothy's averments that Thompson had never been involved in a criminal enterprise and lacked a formal connection to the criminal enterprise were contradicted by the fact that Thompson was indicted, pled guilty, and was convicted of multiple offenses, including engaging in a pattern of corrupt activity, and by the facts placed on the record by the State at the change of plea hearing. The court concluded that these statements by Timothy were entitled to no weight.
{¶ 15} Finally, the court gave no weight to Timothy's statement in paragraph 14 that defense counsel had "failed to provide the Court any of the positive actions" undertaken by Thompson since his arrest. The court found that Thompson's subsequent conduct was immaterial because the plea agreement involved a joint sentencing recommendation that had been agreed to by the court, the State, and Thompson.
{¶ 16} Regarding Thompson's affidavit, the court acknowledged that, in paragraphs 13 and 18, Thompson averred that entering his guilty pleas had been his "only option" and that he had "had no option [other] than to plead guilty," but the court found these statements to be "simply not true," noting that the court had advised Thompson at the change of plea hearing that he had a right to a jury trial. The court had also advised Thompson of the rights he could exercise if he proceeded to trial and that the State would be required to prove each element of his offenses beyond a reasonable doubt. The court pointed out that Thompson had acknowledged his understanding of his rights.
{¶ 17} The court found that Thompson's averment in paragraph 17 that he had "never been involved in the regular operation of the drug trafficking ring" was inconsistent with the evidence and the statement of facts placed on the record by the State prior to the change of plea. It was significant to the court that Thompson had acknowledged his understanding of the nature of the case and the prosecutor's factual statement and that he had not contested any facts before waiving his rights and entering his guilty pleas.
{¶ 18} In paragraph 22 of his affidavit, Thompson averred that he had "felt pressured to agree with the questions asked * * * by the court," but the trial court pointed out that the court had specifically asked him if anyone had threatened, pressured, or coerced him into pleading guilty, and Thompson had responded, "No." Moreover, Thompson had acknowledged that he entered his pleas voluntarily and that, while he had had an opportunity to express any concerns at that time, he failed to do so.
{¶ 19} The court found that it had complied with the requirements of Crim.R. 11 and that Thompson had responded to the court's questions and advisements in such a manner that it was able to "confidently find" that Thompson knowingly, voluntarily, and intelligently waived his rights and entered his guilty pleas. The court observed that Thompson had known the sentence he would receive before he entered his pleas. It also found that the affidavits did not entitle Thompson to a new trial or even a hearing on his petition. The trial court denied the petition on the basis that Thompson had failed to set forth sufficient operative facts to establish substantive grounds for relief.
{¶ 20} We conclude that the trial court properly considered all the Calhoun factors in its decision and that it did not abuse its discretion in denying the petition without a hearing. Thompson's father Timothy's affidavit was based upon his opinion and hearsay provided by Thompson, and although Timothy averred that he had interacted with defense counsel three times, defense counsel had represented Thompson and not Timothy. Timothy claimed that defense counsel had failed to advise the court of the positive actions Thompson had undertaken to change his life, but that request related to Thompson's sentence, on which the parties had previously agreed. Further, at the change of plea hearing and sentencing, defense counsel made positive statements about Thompson, such as telling the court that Thompson only needed a few more credits to obtain his GED, that Thompson had gone to Florida to remove himself from the drug culture and was working 40 hours a week, that his family was supportive, and that Thompson planned to engage in drug treatment and occupational programs in prison. Although Timothy further averred that he had "demanded" a copy of Thompson's discovery packet and had questioned defense counsel as to why the packet had not been provided to his son, he acknowledged that defense counsel advised him that "evidence in the discovery packet could be detrimental to the safety" of his son. In evaluating the affidavits, it was within the court's discretion to consider Timothy's acknowledgment regarding counsel's concern over Thompson's safety related to the discovery packet when assessing Thompson's credibility in asserting that defense counsel was ineffective in failing to provide the packet.
{¶ 21} The transcript of the proceedings reflects that the trial court complied with Crim.R. 11 in accepting Thompson's pleas. As the court noted, Thompson's affidavit was belied by the record. Thompson acknowledged that he had understood the terms of the plea agreement and the nature of the case and that he chose to enter his pleas. Thompson also advised the court that he had not been threatened, pressured, or coerced into pleading guilty, and that his plea was voluntary. Thompson indicated that he understood his right to a jury trial, and he did not raise an objection when the prosecutor recited the facts of the case. While he further asserts that defense counsel failed to communicate, speaking with him only three times before the change of plea hearing, it was within the court's discretion to find, as it did, that Thompson's responses to the court's questions allowed the court to conclude with confidence that Thompson's plea was knowing, intelligent, and voluntary. The trial court reasonably found that the affidavits submitted by Thompson and his father were self-serving and lacked sufficient credibility to set forth sufficient operative facts to establish substantive grounds for relief, and thus did not warrant a hearing. We note that Thompson had been facing a maximum sentence of 36 to 41.5 years prior to the negotiated plea agreement; in determining that Thompson's plea was knowing, intelligent, and voluntary, it was within the court's discretion to conclude that Thompson reasonably chose to plead guilty and accept the agreed-upon sentence.
{¶ 22} For the foregoing reasons, the trial court reasonably chose not to credit Timothy's or Thompson's affidavit, and it explained its reasons for doing so. Based upon the record before us, we cannot conclude that the trial court abused its discretion in denying Thompson's petition for postconviction relief without a hearing.
{¶ 23} Thompson's assignment of error is overruled.
{¶ 24} The judgment of the trial court is affirmed.
TUCKER, J. and EPLEY, J., concur.