State v. Queen , 2022 Ohio 4735 ( 2022 )

[Cite as State v. Queen, 2022-Ohio-4735.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, : Case No. 22CA3978
:
Plaintiff-Appellee, :
:
v. : DECISION AND JUDGMENT
: ENTRY
ARNOLD QUEEN, II, :
:
Defendant-Appellant. : RELEASED: 12/21/2022
APPEARANCES:
Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay Willis, Scioto
County Assistant Prosecuting Attorney, Portsmouth, Ohio for Appellee.
Arnold Queen, II, Appellant, Pro Se.
Wilkin, J.
{¶1} Arnold Queen, II (“Queen”) appeals the judgment of the Scioto
County Court of Common Pleas that denied his petition for post-conviction relief
without holding a hearing. The state of Ohio (“state”) has filed a brief in
opposition.
{¶2} Queen asserts a single assignment of error: “The lower court abused
its discretion when it denied appellant’s petition for postconviction relief without
first holding an evidentiary hearing as the issue is not in the record and should
have been decided with a hearing, depriving the appellant adequate procedural
due process of law.”
{¶3} The state claims that Queen’s guilty plea included agreed,
consecutive sentences. The state claims that Queen’s agreed sentence is not
Scioto App. No. 22CA3978 2
appealable under R.C. 2953.08(D)(1). It further claims that Queen’s guilty plea
waived all his rights that occurred prior to the plea, except for an allegation that
he did not voluntarily enter the plea, which he did not assert.
{¶4} The state points out that Queen has “offered no specific facts or
evidence to support his claim.” It also maintains that the trial court did make the
findings required under R.C. 2929.14 to impose consecutive sentences.
{¶5} The state maintains that Queen’s counsel negotiated a plea with an
agreed sentence of 12 to 15 years, which is significantly less than the 22 to 33-
year prison term that he could have received had he rejected the plea.
{¶6} The state concludes that Queen has not shown that his counsel’s
representation failed to meet the standard of objective reasonableness.
Therefore, the state argues that the trial court’s decision denying Queen’s
petition should be affirmed without a hearing.
{¶7} Having reviewed the arguments, the applicable law, and the record,
we overrule Queen’s assignment of error and affirm the trial court’s judgment that
denied his petition.
BACKGROUND
{¶8} On September 22, 2020, the state charged Queen with the following:
(1) two counts of aggravated vehicular homicide, each in violation of R.C.
2903.06(A)(1)(a) and 2903.06(B)(2)(b)(i), first-degree felonies; (2) one count of
operating a vehicle under the influence of alcohol, a drug of abuse or a
combination of them in violation of R.C. 4511.19(A)(1)(a) and 4511.19(G)(1)(a), a
first-degree misdemeanor; and (3) one count of driving under suspension or in
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violation of license restriction in violation of R.C. 4510.11(A) and 4510.11(D)(1),
also a first-degree misdemeanor. Queen pleaded not guilty.
{¶9} During a pre-trial hearing on August 31, 2021, the parties informed
the court that they had reached a plea agreement. Consequently, the court
proceeded with a change of plea hearing. According to the trial court’s entry
accepting Queen’s guilty plea, the court engaged in a colloquy with Queen during
which
[he] was advised by the Court of the charge or charges and of all
constitutional rights, and the penalty provided by law, that the
defendant was presumed innocent and that such presumption
continues unless proven guilty beyond a reasonable doubt.
Defendant said that the defendant’s acts were free and voluntary
acts, whereupon the court found that defendant’s rejection of all
rights was voluntarily, intelligently and knowingly made by the
defendant.
{¶10} Sentencing was set for September 24, 2021. Queen signed a
document titled “MAXIMUM PENALTY,” which stated that he understood that
Counts 1 and 2 each required a mandatory prison term of 11 to 16 and one-half
years, and Counts 3 and 4 could each result in 180 days in jail. He also signed a
second document titled “WAIVER of RIGHTS,” that stated that he understood the
charges against him and “the penalty provided by law” and that by pleading guilty
to those charges he was waiving his constitutional trial rights.
{¶11} At the sentencing hearing, the trial court imposed the following
sentence: (1) a mandatory minimum of six years to a maximum of nine years in
prison on Count 1, (2) a mandatory six years in prison on Count 2, (3) six months
in jail on Count 3; and (4) six months in jail on Count 4. The court ordered the
prison terms for Counts 1 and 2 to be served consecutive to one another for an
Scioto App. No. 22CA3978 4
aggregate prison term of a minimum of 12 years to a maximum of 15 years with
12 of those years being mandatory. The court also ordered the misdemeanor jail
sentences for Counts 3 and 4 to run consecutive to each other for an aggregate
sentence of twelve months of incarceration in jail, but to be served concurrent to
the felony sentences. Finally, the entry stated: “This sentence, pursuant to
O.R.C. 2953.08(D), IS an AGREED SENTENCE.” Queen did not file a direct
appeal, and his 30-day appeal window expired.
{¶12} On December 20, 2021, Queen filed a “petition to vacate or set
aside sentence” pursuant to R.C. 2953.21. The petition alleged that the trial
court did not make the findings required by R.C. 2929.14 when it imposed
consecutive sentences. Thus, Queen maintained that his trial counsel was
ineffective for failing to object to the trial court’s failure to make those findings.
{¶13} The trial court denied Queen’s petition without holding a hearing.
The court found that Queen entered a plea agreement that included agreed,
consecutive sentences. The court determined that it made the findings required
by R.C. 2929.14 when imposing consecutive sentences and Queen was aware of
the maximum penalties he could receive. The court further found there was
nothing for Queen’s “trial counsel to object to.” Trial counsel negotiated a plea
for Queen that included a sentence that was “a substantial reduction in the
penalty that he could have received.” It is this judgment that Queen appeals.
ASSIGNMENT OF ERROR
THE LOWER COURT ABUSED ITS DISCRETION WHEN IT DENIED
APPELLANT’S PETITION FOR POSTCONVICTION RELIEF WITHOUT
FIRST HOLDING AN EVIDENTIARY HEARING AS THE ISSUE IS NOT
IN THE RECORD AND SHOULD HAVE BEEN DECIDED WITH A
Scioto App. No. 22CA3978 5
HEARING, DEPRIVING THE APPELLANT ADEQUATE PROCEDURAL
DUE PROCESS OF LAW.
{¶14} Queen argues that the trial court abused its discretion when it
denied his petition for post-conviction relief without holding a hearing. He asserts
that the trial court did not make the “courses of conduct” finding required by R.C.
2929.14(C)(4)(b), which sets out findings a court must make before it can order
sentences to be served consecutively. Queen claims that his trial counsel was
ineffective for failing to object to the trial court’s order that his sentences were to
be served consecutively. Queen maintains that the evidence supporting his
claim is “dehor[s] the record.” Finally, Queen alleges that “there is absolutely
nothing in the waiver of jury trial or plea change that stipulates the Appellate
agreed to a twelve-year sentence.”
LAW
A. Standard of Review
{¶15} “[W]e review decisions granting or denying a postconviction relief
petition filed pursuant to R.C. 2953.21 under an abuse of discretion
standard.” State v. Blanton, 4th Dist. Adams No. 19CA1096, 2020-Ohio-7018, ¶
7, citing State v. Smith, 4th Dist. Highland No. 19CA16, 2020-Ohio-116, at ¶
16; State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, at ¶
58. “A trial court abuses its discretion when its decision is unreasonable,
arbitrary, or unconscionable.” State v. Knauff, 4th Dist. Adams No. 13CA976,
2014-Ohio-308, ¶ 19, citing Cullen v. State Farm Mut. Auto Ins. Co., 137 Ohio
St.3d 373, 2013-Ohio-4733, 999 N.E.2d 614, at ¶ 19.
Scioto App. No. 22CA3978 6
{¶16} “In a petition for post-conviction relief, which asserts ineffective
assistance of counsel, the petitioner 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. Jackson, 64 Ohio St. 2d 107, 413 N.E.2d 819 (1980) at
the syllabus.
{¶17} “A criminal defendant seeking to challenge a conviction through a
petition for postconviction relief is not automatically entitled to an evidentiary
hearing.” State v. Jayjohn, 4th Dist. Vinton No. 2021-Ohio-2286, ¶ 11, citing
State v. Calhoun, 86 Ohio St. 3d 279, 282, 714 N.E.2d 905 (1999), citing State v.
Cole, 2 Ohio St.3d 112, 443 N.E.2d 169 (1982). “Before granting an evidentiary
hearing, the trial court must determine whether substantive grounds for relief
exist. R.C. 2953.21(D). In making such a determination, the court shall consider
the petition, supporting affidavits, documentary evidence, and all the files and
records from the case.” State v. Smith, 4th Dist. Highland No. 19CA16, 2020-
Ohio-116, ¶ 18, citing Calhoun at 282.
{¶18} “Substantive grounds for relief exist and a hearing is warranted if
the petitioner produces sufficient credible evidence that demonstrates the
petitioner suffered a violation of the petitioner's constitutional rights.” In re B.C.S.,
4th Dist. Washington No. 07CA60, 2008-Ohio-5771, ¶ 11, citing Calhoun at 282-
283. The petitioner must also prove that those errors resulted in prejudice. Id.“A court may dismiss a petition for postconviction relief without a hearing when
the petitioner fails to submit evidentiary material ‘demonstrat[ing] that petitioner
Scioto App. No. 22CA3978 7
set forth sufficient operative facts to establish substantive grounds for relief.’ ”
(Brackets sic.). Jayjohn, 4th Dist. Vinton No. 2021-Ohio-2286, ¶ 12, quoting
Calhoun at paragraph two of the syllabus.
B. Ineffective Assistance of Counsel
{¶19} “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 United States or the Ohio Constitution.” State v. McCain, 4th Dist.
Pickaway No. 4CA27, 2005-Ohio-4952, ¶ 9, citing R.C. 2953.21(A)(1); State v.
Hatton, 4th Dist. Pickaway No. 00CA10, 2000 WL 1152236 (Aug. 4, 2000).
In his petition for post-conviction relief, Queen maintained that he was deprived
of his constitutional right to effective assistance of counsel. “To establish
constitutionally ineffective assistance of counsel, a defendant must show (1) that
his counsel's performance was deficient and (2) that the deficient performance
prejudiced the defense and deprived him of a fair trial.” State v. Jarrell, 2017-
Ohio-520, 85 N.E.3d 175, ¶ 48 (4th Dist.), citing Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “ ‘In order to
show deficient performance, the defendant must prove that counsel’s
performance fell below an objective level of reasonable representation. To show
prejudice, the defendant must show a reasonable probability that, but for
counsel's errors, the result of the proceeding would have been different.’ ”
State v. Jones, 2018-Ohio-239, 104 N.E.3d 34, ¶ 21 (4th Dist.), quoting State v.
Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, at ¶ 95.
Scioto App. No. 22CA3978 8
“ ‘Failure to establish either element is fatal to the claim.’ ” Id., quoting State v.
Jones, 4th Dist. Scioto No. 06CA3116, 2008-Ohio-968, ¶ 14.
{¶20} “When considering whether trial counsel's representation amounts
to deficient performance, ‘a court must indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable professional
assistance[.]’ ” State v. Gaffin, 4th Dist. Adams No. 16CA1027, 2017-Ohio-2935,
¶ 30, quoting Strickland, at 689. “[A] defendant bears the burden to show
ineffectiveness by demonstrating that counsel's errors were so serious that he or
she failed to function as the counsel guaranteed by the Sixth Amendment.” Id.,citing State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶
61.
ANALYSIS
A. Ineffective Assistance of Counsel
{¶21} A careful reading of Queen’s petition for post-conviction relief
reveals that his only allegation was that his counsel was ineffective for failing to
object to the trial court’s imposition of consecutive sentences because the court
did not make the findings required by R.C. 2929.14(C)(4). In his appeal, he now
seems to claim that his plea did not include an agreed sentence. He maintains
“that there is absolutely nothing in the waiver of jury trial or plea change that
stipulates the Appellate agreed to a twelve-year sentence.”
{¶22} “Generally, a trial court must make certain findings prior to imposing
consecutive sentences. R.C. 2929.14(C)(4).” State v. Billiter, 2018-Ohio-733,
106 N.E.3d 785, ¶ 33 (4th Dist.). However, “ ‘[i]f a jointly recommended sentence
Scioto App. No. 22CA3978 9
includes nonmandatory consecutive sentences and the trial judge fails to make
the consecutive-sentence findings set out in [former] R.C. 2929.14(E)(4) [now
found in R.C. 2929.14(C)(4)], the sentence is nevertheless “authorized by law[.]” ’
” Id. at ¶ 34, quoting State v. Sergent, 148 Ohio St.3d 94, 2016-Ohio-2696, 69
N.E.3d 627, ¶ 30, 36.
{¶23} We start by recognizing that the court made the findings required by
R.C. 2929.14(C)(4) authorizing it to impose consecutive sentences.
Furthermore, to the extent that Queen’s guilty plea included agreed, consecutive
sentences, it was “authorized by law,” irrespective of whether the trial court made
the R.C. 2929.14(C)(4) findings. Consequently, Queen’s counsel’s failure to
object to the agreed sentences solely because the trial court did not make R.C.
2929.14(C)(4) findings was within the “range of reasonable professional
assistance” because the sentence was authorized by law.
{¶24} Queen further argues that his plea agreement did not include the
agreed, consecutive sentences. In support, he maintains that “there is absolutely
nothing in the waiver of jury trial or plea change that stipulates the Appellate
agreed to a twelve-year sentence.”
{¶25} Queen is correct that neither his waiver of jury trial, nor the entry
adopting his plea, references an agreed sentence. However, the absence of any
reference to an agreed sentence in those documents is not necessarily indicative
that a plea does not include an agreed sentence. Specifics of plea agreements,
including agreed sentences, are discussed during plea hearings. See State v.
Rue, 9th Dist. Summit No. 27622, 2015-Ohio-4008, ¶ 7 (“A review of the
Scioto App. No. 22CA3978 10
transcript from the plea colloquy reveals that the assistant prosecutor stated that
the parties had reached a plea agreement that included an agreed sentence.
Defense counsel stated that ‘we are going to join in the recommendation for the
ten years consecutive on each count understanding that it will be a 20-year term.’
”). As we mentioned supra, the trial court held a plea hearing in this case.
However, there is no transcript of that hearing in the record for us to review.
{¶26} “[I]t is the duty of the appellant to provide a transcript for appellate
review.” State v. Hess, 2014-Ohio-3193, 17 N.E.3d 15, ¶ 42 (4th Dist.),
citing Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 383.
“Appellant must request in writing from the reporter a complete transcript or
a transcript of such parts of the proceedings deemed necessary for inclusion in
the record and shall file a copy of said order with the clerk ‘[a]t the time of filing
the notice of appeal.’ ” Wilkinson v. Stirr, 4th Dist. Highland No. 797, 1992 WL
308272 (Oct. 14, 1992), fn1, quoting App.R. 9(B). If an appellant fails “to
provide this Court with the transcript of the change of plea hearing, we have
nothing to pass upon and must, instead, presume the regularity and validity of
the proceedings below.” State v. Crawford, 4th Dist. Scioto No. 16CA3778,
2018-Ohio-2166, ¶ 13.
{¶27} In the instant case, Queen’s notice of appeal did not request a
transcript of the plea hearing. Consequently, there is no transcript of the hearing
in the record. Absent this transcript, there is nothing for us to review aside from
Queen’s bald assertions, so we must presume the regularity and validity of the
plea proceedings in the trial court. The trial court’s sentencing entry expressly
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states that the consecutive service of his prison and jail terms is part of Queen’s
“agreed sentence.” Therefore, we find that Queen’s guilty plea included agreed,
consecutive sentences. As a result, Queen’s counsel was not ineffective in
failing to object.
{¶28} For the aforementioned reasons, we find Queen has failed to set
forth “sufficient operative facts” to establish that his trial counsel’s representation
was ineffective. Rather, presuming the regularity of the proceedings, Queen’s
counsel negotiated an arguably favorable plea agreement for him. Therefore, we
find that the trial court’s denial of Queen’s petition without holding a hearing was
not unreasonable, arbitrary, or unconscionable. Accordingly, the trial court did
not abuse its discretion in denying Queen’s petition without holding a hearing.
B. Res Judicata
{¶29} Even assuming for argument’s sake that Queen’s claim that
his counsel was ineffective had merit, “ ‘[t]he proper time to raise an
ineffective assistance of trial counsel argument is on direct appeal of the
original conviction and sentence.’ ” State v. Dawson, 4th Dist. Pickaway
No. 18CA17, 2019-Ohio-2758, ¶ 11, quoting State v. Brown, 4th Dist.
Scioto No. 16CA3770, 2017-Ohio-4063, ¶ 26.
“A claim of ineffective assistance of counsel presented in a post-
conviction petition may be dismissed under the doctrine of res
judicata when the petitioner, represented by new counsel on direct
appeal, has failed to raise on appeal the issue of trial counsel's
competence and the issue could fairly have been determined
without evidence dehors the record.”
State v. McKnight, 4th Dist. Vinton No. 07CA665, 2008-Ohio-2435, ¶ 30,
quoting State v. Sowell, 73 Ohio App.3d 672, 676, 598 N.E.2d 136 (1st Dist.
1999).
Scioto App. No. 22CA3978 12
“A petitioner can overcome the res judicata bar to post-conviction relief only if he
presents competent, relevant, and material evidence dehors, or outside, the
record.” State v. Lawson, 10th Dist. Franklin No. No. 02AP-148, 2002-Ohio-
3329, ¶ 15, citing State v. Lawson, 103 Ohio App.3d 307, 315, 659 N.E.2d 362(12th Dist. 1995).
{¶30} Queen maintains his trial counsel “failed to object to the trial Court’s
prejudicial error, thus making no mention in the record of an objection being an
issue dehor[s] the record.” Queen misunderstands the meaning of “dehors the
record” in the context of post-conviction relief. Only when evidence exists solely
outside the record, can the petitioner overcome res judicata and file a petition for
post-conviction relief. Queen fails to identify any evidence outside the record that
would support his claim that his counsel’s failure to object was deficient
representation.
{¶31} Accordingly, res judicata precluded Queen from raising his
ineffective assistance of counsel claim in his petition for postconviction relief.
CONCLUSION
{¶32} In sum, Queen has failed to show that his counsel was ineffective by
demonstrating that counsel's errors were so serious that he or she failed to
function as the counsel guaranteed by the Sixth Amendment. Rather, it appears
that his counsel negotiated a plea that included agreed consecutive sentences
that in aggregate resulted in less incarceration than he could have received if he
rejected the plea. Ultimately, Queen has failed to prove his counsel was
Scioto App. No. 22CA3978 13
ineffective and we presume the validity of his plea including the agreed
consecutive sentences. Having overruled Queen’s sole assignments of error,
and found that any relief is also barred by res judicata, we affirm the trial court’s
judgment entry denying his petition for postconviction relief.
JUDGMENT AFFIRMED.
Scioto App. No. 22CA3978 14
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and appellant shall pay
the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Scioto County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS
COURT, it is temporarily continued for a period not to exceed 60 days upon the
bail previously posted. The purpose of a continued stay is to allow Appellant to
file with the Supreme Court of Ohio an application for a stay during the pendency
of proceedings in that court. If a stay is continued by this entry, it will terminate at
the earlier of the expiration of the 60-day period, or the failure of the Appellant to
file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court
of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to
expiration of 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Smith, P.J. and Hess, J.: Concur in Judgment and Opinion.
For the Court,
BY: ________________________
Kristy Wilkin, 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.