State v. Weddington , 2011 Ohio 1017 ( 2011 )

[Cite as State v. Weddington, 2011-Ohio-1017.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No: 10CA19
:
v. :
: DECISION AND
MELINDA K. WEDDINGTON, : JUDGMENT ENTRY
:
Defendant-Appellant. : File-stamped date: 3-01-11
APPEARANCES:
David Reid Dillon, South Point, Ohio, for Appellant.
J.B. Collier, Jr., Lawrence County Prosecuting Attorney, and Jeffrey M. Smith,
Lawrence County Assistant Prosecuting Attorney, Ironton, Ohio, for Appellee.
Kline, J.:
{¶1} Melinda K. Weddington appeals the judgment of the trial court dismissing
her petition for postconviction relief without a hearing. On appeal, Weddington
contends that the trial court abused its discretion because her petition alleged sufficient
operative facts to demonstrate substantive grounds for relief based on ineffective
assistance of counsel. Because we find that Weddington failed to adduce any evidence
that she would have insisted on going to trial absent her attorney’s alleged ineffective
assistance, and thus, failed to satisfy the prejudice prong of the Strickland test, we
disagree. Weddington next contends that the trial court committed plain error in the
original proceedings by failing to make specific factual findings at the sentencing and by
erroneously imposing a mandatory fine. We, however, find that Weddington has failed
Lawrence App. No. 10CA19 2
to demonstrate plain error for two reasons. First, Weddington pleaded guilty to the
offense and therefore admitted to the accusations contained in the indictment. Second,
Weddington has failed to demonstrate that the trial court would have imposed a lesser
fine had it known that the fine was not mandatory. Accordingly, we affirm the judgment
of the trial court.
I.
{¶2} The Lawrence County Grand Jury returned a three-count indictment
against Weddington, which alleged that Weddington (1) failed to comply with an order or
signal of a police officer in violation of R.C. 2921.331(C)(5)(a)(ii), a third-degree felony;
(2) received stolen property in violation of R.C. 2913.51(A), a fourth-degree felony; and
(3) possessed cocaine in violation of R.C. 2925.11(C)(4)(b), a fourth-degree felony.
{¶3} Weddington pleaded guilty to failure to comply and receiving stolen
property. She pleaded no contest to possession of crack cocaine. The court found
Weddington guilty of all three counts. The court sentenced Weddington to four years
incarceration on count one and twelve months incarceration for each of counts two and
three. The trial court ordered Weddington to serve these three sentences concurrently.
{¶4} Weddington filed a petition for postconviction relief under R.C. 2953.21.
The trial court denied Weddington’s petition without affording her a hearing.
{¶5} Weddington appeals this judgment and assigns the following errors for
our review: I. “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
DENYING DEFENDANT-APPELLANT’S PETITION TO VACATE OR SET ASIDE
JUDGMENT OF CONVICTION OR SENTENCE WITHOUT HOLDING A HEARING ON
THE MOTION.” In addition, Weddington filed a motion for a delayed appeal under
Lawrence App. No. 10CA19 3
App.R. 5(A), which we have granted to consider two direct, rather than collateral,
assignments of plain error. Pursuant to that motion, she raises the following two
assignments of error. II. “THE TRIAL COURT COMMITTED PLAIN ERROR IN
FINDING DEFENDANT-APPELLANT GUILTY OF O.R.C. 2921.331 WITHOUT
MAKING THE FINDINGS REQUIRED BY THAT SUBSECTION.” And, III. “THE TRIAL
COURT COMMITTED PLAIN ERROR IMPOSING ON DEFENDANT A MANDATORY
FINE WITHOUT STATUTORY AUTHORITY AND WHILE DEFENDANT WAS
INDIGENT.”
II.
{¶6} Weddington’s first assignment of error requires us to review the judgment
of the trial court denying a petition for postconviction relief without a hearing. We review
the judgment of a trial court in dismissing a petition for postconviction relief without a
hearing for an abuse of discretion. State v. Hicks, Highland App. No. 09CA15, 2010-
Ohio-89, at ¶11. An abuse of discretion is more than an error of judgment; “it implies
that the court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v.
Blakemore (1983), 5 Ohio St. 3d 217, 219.
{¶7} “The post-conviction relief statute, R.C. 2953.21, provides a remedy for a
collateral attack upon judgments of conviction claimed to be void or voidable under the
Constitutions of the United States or Ohio. R.C. 2953.21(A)(1)[.]” State v. Bradford,
Ross App. No. 08CA3053, 2009-Ohio-1864, at ¶7, citing State v. Hatton (Aug. 4, 2000),
Pickaway App. No. 00CA10. In order for Weddington to prevail, she must establish that
she has suffered an infringement or deprivation of her constitutional rights. See R.C.
2953.21(A)(1); State v. Calhoun, 86 Ohio St. 3d 279, 283, 1999-Ohio-102.
Lawrence App. No. 10CA19 4
{¶8} A criminal defendant seeking to challenge her conviction through a
petition for postconviction relief is not automatically entitled to a hearing. See State v.
Cole (1982), 2 Ohio St. 3d 112, 113; State ex rel. Jackson v. McMonagle, 67 Ohio St. 3d
450, 451, 1993-Ohio-143. “Before granting a hearing on a petition * * *, 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 transcript.” R.C. 2953.21(C).
{¶9} Indeed, R.C. 2953.21(C) imposes a duty on the trial court to ensure that
the petitioner adduces sufficient evidence to warrant a hearing. Cole at 113. “The court
may dismiss a petition for post-conviction relief without a hearing when the petitioner
fails to submit evidentiary material setting forth sufficient operative facts to demonstrate
substantive grounds for relief.” Bradford at ¶10, citing State v. Jackson (1980), 64 Ohio
St.2d 107, 111; State v. Apanovitch (1995), 107 Ohio App. 3d 82, 98. See, also, State v.
Wright, Washington App. No. 06CA18, 2006-Ohio-7100, at ¶20.
{¶10} “[E]vidence supporting a petition for post-conviction relief must meet
some threshold level of cogency that advances the petitioner’s claim beyond mere
hypothesis. The evidence must be genuinely relevant, and it must materially advance
petitioner’s claim that there has been a denial or infringement of his or her constitutional
rights.” Wright, 2006-Ohio-7100, at ¶22 (internal citation omitted). Additionally, the
court is free to assess whether the petitioner’s evidence is credible. See Wright, 2006-
Lawrence App. No. 10CA19 5
Ohio-7100, at ¶23, citing Calhoun at 284; State v. Smith (1997), 125 Ohio App. 3d 342,
351.
{¶11} Weddington’s petition in the trial court raised two claims for relief. But
on appeal, Weddington relies solely on her argument that she was afforded ineffective
assistance of counsel. In her petition, Weddington stated that her “lawyer mislead [sic],
emotionally abused, alright [sic] lied about the law and said [that she] couldn’t fire him
because [she] couldn’t afford an attorney.” Weddington attached an affidavit to her
petition that expanded upon these points. The trial court dismissed the petition for
postconviction relief because “the petition, the transcript of the hearing conducted in this
case, and the court file and records do not demonstrate that petitioner has set forth
sufficient operative facts to establish substantive grounds for relief.”
{¶12} “‘In Ohio, a properly licensed attorney is presumed competent and the
appellant bears the burden to establish counsel’s ineffectiveness.’” State v.
Countryman, Washington App. No. 08CA12, 2008-Ohio-6700, at ¶20, quoting State v.
Wright, Washington App. No. 00CA39, 2001-Ohio-2473; State v. Hamblin (1988), 37
Ohio St. 3d 153, 155-56, cert. den. Hamblin v. Ohio (1988) 488 U.S. 975. To secure
reversal for the ineffective assistance of counsel, one must show two things: (1) “that
counsel’s performance was deficient * * *” which “requires showing that counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment[;]” and (2) “that the deficient performance prejudiced
the defense * * * [,]” which “requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland v.
Washington (1984), 466 U.S. 668, 687. See, also, Countryman at ¶20. “Failure to
Lawrence App. No. 10CA19 6
satisfy either prong is fatal as the accused’s burden requires proof of both elements.”
State v. Hall, Adams App. No. 07CA837, 2007-Ohio-6091, at ¶11, citing State v.
Drummond, 111 Ohio St. 3d 14, 2006-Ohio-5084, at ¶205.
{¶13} In the context of guilty pleas, courts have modified the prejudice prong
of the Strickland test. “[T]he defendant must demonstrate that there is a reasonable
probability that, but for [her] counsel’s error, [she] would not have pleaded guilty and
would have insisted on going to trial.” State v. Barnett, Portage App. No. 2006-P-0117,
2007-Ohio-4954, at ¶51, citing Hill v. Lockhart (1985), 474 U.S. 52, 58-59. This holding
is equally applicable in the context of a no contest plea. Barnett at ¶52; State v. Bishop
(Nov. 25, 1998), Lorain App. No. 97CA006905; State v. Brown (May 16, 1997),
Montgomery App. No. 96-CA-092. As the Jackson case makes clear, in order for a
petitioner to be entitled to a hearing, the petitioner must set forth evidentiary materials
that support the petitioner’s claim. Accordingly, we focus on the averments in the
affidavit.
{¶14} In the beginning of her affidavit, Weddington alleges that her “attorney
mislead [sic] [her] by telling [her that she] had no right to be seen by paramedics, to be
properly detoxed, to have basic hygiene products, and cleaning supplies-n-ToiletPaper
[sic]. 2.) On the video cam it clearly shows that [she] should have been checked by
paramedics, and that [she] was spoken inapprioately [sic] to.” Essentially, Weddington
appears to claim that the police should have put her in a detox program after her arrest
and that the conditions of her pretrial detention were unsanitary. Even granting this to
be true, Weddington does not explain why she would have insisted on going to trial
absent her attorney’s ineffective assistance. These paragraphs are also unclear on
Lawrence App. No. 10CA19 7
what the alleged ineffectiveness of the attorney actually was. For instance, the affidavit
never explains precisely what the attorney said, but merely avers that her attorney
misled her in some fashion.
{¶15} Weddington’s affidavit also offers a mere conclusion that her “attorney
was more concerned in the well being of the Lawrence County Sheriff Dept then [sic]
my defense.” There are no facts specifically alleged in the affidavit that support this
particular conclusion.
{¶16} Weddington also contends that her counsel was ineffective because,
contrary to her requests, he failed to move for a bond reduction. But nowhere in the
affidavit does Weddington claim that she would have insisted on going to trial if her
bond were reduced.
{¶17} Weddington further contends that her attorney was ineffective because
he failed to ask that the court waive costs and fees because of Weddington’s indigency.
The Revised Code requires the court to impose the costs of prosecution in any criminal
sentence. R.C. 2947.23(A)(1). But the court may waive the imposition of costs if “the
court determines that the offender is indigent[.]” R.C. 2949.092; see, also, State v.
White, 103 Ohio St. 3d 580, 2004-Ohio-5989, at ¶8, fn. 1. “R.C. 2947.23 requires a
judge to assess costs against all convicted criminal defendants, and waiver of costs is
permitted – but not required – if the defendant is indigent.” White at ¶14. Therefore, in
order to demonstrate ineffective assistance of trial counsel, Weddington needs to
demonstrate that, had her attorney filed a motion for a waiver of costs, the motion stood
a reasonable probability of success. State v. King, Wood App. No. WD-09-069, 2010-
Ohio-3074, at ¶11; see, also, State v. Fayne, Cuyahoga App. No. 90045, 2009-Ohio-
Lawrence App. No. 10CA19 8
2699, at ¶7-8 (rejecting ineffective assistance of counsel argument where petitioner only
pointed to indigency as a justification for the court granting waiver). Here, Weddington
has produced no evidence tending to show that any such motion had a reasonable
probability of success other than pointing to her indigency.
{¶18} Weddington’s affidavit also claims she was afforded ineffective
assistance of counsel because her attorney encouraged her to write a letter to the
judge. This letter apparently was an attempt to win either sympathy or credibility as it
told the judge “everything that [Weddington] had every [sic] done including how [she]
had drunk Febreeze once.” Again, Weddington fails to explain how this letter prejudiced
her. And on its face, such a letter may be a reasonable attempt to win sympathy or
credibility.
{¶19} Finally, Weddington’s affidavit also raises other concerns related to her
detention. Apparently, a railroad train struck and killed Weddington’s child. At some
point during Weddington’s pretrial detention, Weddington’s cell overlooked a set of
railroad tracks. Weddington again raises the issue of bond reduction as well as arguing
that her attorney should have filed a motion asking for Weddington’s relocation. But
Weddington does not explain why she would have insisted on going to trial but for her
attorney’s failure to move for either bond reduction or relocation.
{¶20} We have considered the averments of the affidavit submitted by
Weddington with her petition for postconviction relief. We find that the trial court did not
abuse its discretion when it determined that Weddington failed to adduce sufficient
operative facts to demonstrate substantive grounds for relief because Weddington failed
Lawrence App. No. 10CA19 9
to satisfy the prejudice prong of the Strickland test. Accordingly, we overrule
Weddington’s first assignment of error.
III.
{¶21} We next consider Weddington’s second and third assignments of error.
We consider these assignments of error together as both are brought to our attention
pursuant to Weddington’s motion for a delayed appeal under App.R. 5(A). We granted
this motion and permitted Weddington to raise these two assignments of error for our
direct review. In addition, both assignments of error contend that the trial court
committed plain error.
{¶22} The Ohio Rules of Criminal Procedure provide that appellate courts
may notice “[p]lain errors or defects affecting substantial rights * * * although they were
not brought to the attention of the [trial] court.” Crim.R. 52(B) “Inherent in the [plain-
error] rule are three limits placed on reviewing courts for correcting plain error.” State v.
Payne, 114 Ohio St. 3d 502, 2007-Ohio-4642, at ¶15. “‘First, there must be an error,
i.e., a deviation from the legal rule. * * * Second, the error must be plain. To be ‘plain’
within the meaning of Crim.R. 52(B), an error must be an ‘obvious’ defect in the trial
proceedings. * * * Third, the error must have affected ‘substantial rights.’ We have
interpreted this aspect of the rule to mean that the trial court’s error must have affected
the outcome of the trial.’” Id. at ¶16, quoting State v. Barnes, 94 Ohio St. 3d 21, 27,
2002-Ohio-68 (omissions in original). In addition, the Supreme Court of Ohio has noted
the discretionary aspect of recognizing plain error. See Barnes at 27. We should
recognize plain error “‘with the utmost caution, under exceptional circumstances and
Lawrence App. No. 10CA19 10
only to prevent a manifest miscarriage of justice.’” Id., quoting State v. Long (1978), 53
Ohio St. 2d 91, at paragraph three of the syllabus.
{¶23} In her second assignment of error, Weddington contends that the trial
court erred because it failed to make a specific finding required by the statute.
Weddington pleaded guilty to failing to comply with the order of a police officer, a felony
of the third degree. Based on the statute, this would require that Weddington commit
the base offense of “willfully [eluding or fleeing] a police officer after receiving a visible
or audible signal from a police officer to bring [her] motor vehicle to a stop.” R.C.
2921.331(B). In addition, while committing this offense, Weddington’s operation of the
motor vehicle either had to be the “proximate cause of serious physical harm to persons
or property” or had to have “caused a substantial risk of serious physical harm to
persons or property.” R.C. 2921.331(C)(5)(a)(i) & (ii).
{¶24} Weddington specifically contends that the trial court failed to make one-
of-the-two findings required by R.C. 2921.331(C)(5)(a). However, the indictment in this
case properly accused Weddington of willfully eluding or fleeing a police officer and that
“the operation of the motor vehicle caused substantial risk of serious physical harm to
persons or property, in violation of Section 2921.331 (B)(C)(5)(a)(ii) of the Revised
Code, F-3.” Weddington pleaded guilty to this count. “Inasmuch as [she] pleaded guilty
[she] admitted all the well pleaded material facts in the indictment and waived a trial.”
Rodriguez v. Sacks (1962), 173 Ohio St. 456, 457. We cannot agree that the trial court
committed plain error in not specifically finding that Weddington’s offense caused a
substantial risk of serious physical harm to persons or property because Weddington’s
guilty plea had already admitted that fact.
Lawrence App. No. 10CA19 11
{¶25} In Weddington’s third assignment of error, she contends that the trial
court committed plain error by ordering her to pay a $2,500 mandatory fine in
connection with her conviction for possession of crack cocaine. The judgment entry
clearly indicates that the fine is mandatory. However, Weddington pleaded no contest
to, and was convicted of, possessing crack cocaine in violation of R.C.
2925.11(C)(4)(b), a fourth-degree felony. A trial court may assess a fine of up to five
thousand dollars against an individual found guilty of a fourth-degree felony. R.C.
2929.18(A)(3)(d). The same statute provides for mandatory fines for violations of R.C.
2925.11, but only for first, second, and third-degree felony violations. R.C.
2929.18(B)(1). The trial court therefore erred in imposing a $2,500 “mandatory” fine.
{¶26} The State argues that we should overrule this assignment of error as
any error here is not plain error because the fine was within the authority of the court to
impose. We agree. Weddington provides no explanation or evidence for why the court
would not have imposed a $2,500 fine had it understood that it had no mandatory duty
to do so. In other words, we find that Weddington has failed to show that the error
“affected the outcome of the trial.” Barnes at 27.
{¶27} Accordingly, we overrule Weddington’s second and third assignments
of error and affirm the judgment of the Lawrence County Court of Common Pleas.
JUDGMENT AFFIRMED.
Lawrence App. No. 10CA19 12
Harsha, P.J., concurring in part and dissenting in part:
{¶28} I concur in judgment only on the first assignment of error because I continue
to apply the standard of review set forth in In re B.C.S., Washington App. No. 07CA60,
2008-Ohio-5771, at ¶9, and State v. Harrington, 172 Ohio App. 3d 595, 2007-Ohio-3796,
at ¶9.
{¶29} I dissent on the third assignment of error because the court’s entry clearly
indicates that it considered the fine of $2,500 to be mandatory in nature when in fact it
was not. Thus, the court failed to exercise its discretion in the mistaken belief that it did
not exist. The failure to exercise discretion when it exists is in itself an abuse of
discretion. In re T.F., Highland App. No. 09CA37, 2010-Ohio-4793, at ¶16. In my view
it also amounts to plain error, so I dissent.
Lawrence App. No. 10CA19 13
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and appellant pay the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence
County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.
McFarland, J.: Concurs in Judgment and Opinion.
Harsha, P.J.: Concurs in Part and Dissents in Part with Opinion.
For the Court
BY:
Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.