State v. Wynn ( 1998 )

I respectfully disagree with my colleagues' disposition of this appeal. I believe the defendant's motion papers warranted a hearing under Crim.R. 32.1. The majority acknowledges that "the affidavits of the defendant and the victim read alone and accepted as true might well justify a hearing and perhaps a withdrawal of a plea. * * * [H]owever, even if accepted as true, these affidavits would not exculpate the defendant." It is not necessary, in my opinion, that the affidavits totally exculpate the defendant — only that the outcome below may have been different had his counsel brought forth that defendant was not the gunman. Assuming the truth of the affidavits, as we must do, defendant was sentenced to three years' mandatory imprisonment for pleading guilty to a firearm specification and four to fifteen years on the felonious assault count, to be served consecutively, a sentence he is still serving in prison. The actual gunman who shot the victim, Dominic Starks, in the face, co-defendant Hombre Thomas, pled guilty to two counts of felonious assault without a firearm specification and got probation. If this outcome does not reflect a manifest injustice, the words have lost all meaning.

The majority seems to excuse this major discrepancy in culpability by correctly observing that "it is not necessary that appellant be the gunman * * * or personally possess a firearm for him to be charged with a firearm specification." That may well be the case, but the trial court did not offer a complicity explanation for denying the defendant's motion without a hearing. The state did not even oppose the defendant's motion. That the principal offender who fires the gun gets probation and the accomplice gets three years' actual incarceration plus four to fifteen years for merely being there suggests there was something radically wrong with the procedure. Defendant maintains that it was due to ineffective assistance of counsel, a claim that was supported by his motion papers.

The issue before this court is whether defendant's motion papers were sufficient to entitle him to a hearing or, stated another way, whether the trial court abused its discretion in denying the motion without a hearing.

The pivotal concern in determining whether to grant a hearing on such a motion is whether there are substantive grounds for relief that would warrant a hearing based upon the petition, the supporting affidavits, and the files and records of the case.State v. Swortcheck (1995), 101 Ohio App.3d 770, 656 N.E.2d 732;State v. Strutton (1988), 62 Ohio App.3d 248, 575 N.E.2d 466. This court in Swortcheck stated at 772-773,656 N.E.2d at 733-734:

"When determining whether there are substantive grounds for postconviction relief that would warrant a hearing, the affidavits offered in support of the petition should be accepted as true. See State v. Strutton (1988), 62 Ohio App.3d 248, 252,575 N.E.2d 466, 468-469. The affidavit or affidavits in support need only present sufficient prima facie evidence of ineffective assistance of counsel to warrant a hearing. Id. at 253,575 N.E.2d at 469. In State v. Scott (1989), 63 Ohio App.3d 304,578 N.E.2d 841, this court held that an affidavit containing evidence of the availability of mitigating evidence and the failure of trial counsel to attempt to obtain the mitigating evidence set forth sufficient operative facts to show substantial grounds for relief. Id. at 310, 311, 578 N.E.2d at 845-846. Because there were substantive grounds for relief, this court held that a hearing should have been granted and remanded the case for a hearing on the claim of ineffective assistance [of] counsel during the mitigation phase. Id. at 311, 578 N.E.2d at 846.

"The case sub judice presents a similar basis for relief. The affidavits of Michelle Ettinger and Phyllis McDonald contain evidence which, if believed, would seriously impeach the credibility of the victim, Georgia Ollie, and could possibly exonerate Swortcheck. Swortcheck's affidavit contains evidence that his trial counsel knew that Ettinger and McDonald were potential witnesses, but failed to interview them or call them as witnesses. Accordingly, the affidavits contain sufficient operative facts showing substantive grounds for relief, and a hearing should have been held.

"The state's opposition to the petition merely raises a question of credibility. The State claims that Swortcheck's lawyer did not know of the witnesses. Swortcheck says he did. Thecredibility of the witnesses offering the affidavits is for the trier of fact to resolve at the hearing. See Killilea v.Sears, Roebuck Co., (1985), 27 Ohio App.3d 163, 27 OBR 196,499 N.E.2d 1291 (credibility not proper basis for summary judgment). See, also, State v. Willison (Aug. 18, 1994), Perry App. No. CR-93-462, unreported, 1994 WL 478000; State v. Ramos (June 8, 1994), Lorain App. No. 93CA005741, unreported, 1994 WL 246138, citing State v. Xie (1992), 62 Ohio St.3d 521, 525,584 N.E.2d 715, 718. Thus, the credibility of witnesses and any conflict in evidence are properly resolved at the postconviction hearing, not before. State v. Rios (Apr. 15, 1993), Cuyahoga App. No. 63509, unreported, 1993 WL 120252 (Blackmon, J., dissenting)." (Emphasis added.) See, also, State v. Hamed (1989) 63 Ohio App.3d 5, 7,577 N.E.2d 1111, 1112 ("A hearing on a post-sentence motion to withdraw a plea of no contest is required if the facts alleged by the defendant and accepted as true would require the court to permit that plea to be withdrawn").

Defendant argues that he did not receive effective assistance of counsel.

In State v. Alexander (Feb. 19, 1998), Cuyahoga App. No. 72028, unreported, 1998 WL 72491, this court recently stated the showing that must be made for such a claim:

"In State v. Xie (1992), 62 Ohio St.3d 521, 584 N.E.2d 715, the court stated that in order to prevail on a claim of ineffective assistance of counsel upon entry, of a guilty plea, a defendant must meet the test set forth in Strickland v. Washington (1984),466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Under this test, the defendant must first show that counsel's performance was deficient and "second, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty * * *." Xie, 62 Ohio St.3d at 524,584 N.E.2d at 717 (quoting Hill v. Lockhart [1985], 474 U.S. 52, 59,106 S.Ct. 366 [370-371], 88 L.Ed.2d 203 [210])."

I find that defendant's affidavits present prima facie evidence that counsel's performance was deficient and that defendant was prejudicially affected by this deficient representation.

The affidavit of the victim himself states that he was shot by Hombre Thomas, a co-defendant, who got probation, that defendant Wynn did not have a gun, and that these facts were made known to defendant's counsel in a recorded statement prior to the plea. Defendant's affidavit confirms these allegations and asserts that defendant brought them to his counsel's attention but that they were not followed up on. Defendant claims that he also expressed concern about his counsel's conflict in representing two co-defendants in the same case and facing the same charges. Those two also got off with probation after the firearm specification was deleted. In response, defendant's counsel allegedly told him that the judge said that it was too late to change attorneys and "you either go to trial today or cop out." Defendant alleges that counsel also told him that "you will be found guilty anyway due to the state attorney's belief that the initial argument started with you and led to the shooting of the victim." Of course, none of this explains why the defendant did not profess his innocence or dissatisfaction with counsel at the time of his plea or his sentencing seven months later. Nevertheless, the allegations were sufficient to raise substantial questions about the effectiveness of his counsel's representation in the matter, especially since the state did not see fit to even oppose the motion or offer any conflicting explanation. The state's explanation in this court is equally unpersuasive.

Furthermore, there is sufficient evidence that defendant was prejudicially affected by counsel's alleged ineffective representation. While all of the co-defendants pled guilty to two counts of felonious assault, only defendant's plea included a firearm specification. However, the affidavits of the victim and the defendant present evidence that defendant did not shoot the victim and that defendant was not in possession of a firearm at the time of the offense. The affidavits further state that the victim gave this exculpatory evidence in a recorded statement to defense counsel prior to the plea, but he was never called to testify. Defendant asserts that "but for" counsel's failure to timely investigate and present this evidence to the court, he would not have pled guilty to a charge that included a firearm specification. The firearm specification added a mandatory three years' incarceration to defendant's four- to fifteen-year sentence on' count one. These assertions present sufficient evidence that defendant was prejudiced by counsel's failure to investigate and/or present the alleged mitigating statement of the victim prior to defendant's plea.

Accordingly, the affidavits of the victim and the defendant present sufficient operative facts that counsel's representation was deficient and that defendant was prejudicially affected by such representation. "While the trial court sub judice may ultimately conclude that [defendant's allegations] are not credible, that determination cannot be made without a hearing."Swortcheck, supra, 101 Ohio App.3d at 773, 656 N.E.2d at 734. The trial court abused its discretion in not granting defendant an evidentiary hearing.