State v. Scott ( 2016 )

[Cite as State v. Scott, 2016-Ohio-3488.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Sheila G. Farmer, P. J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case Nos. 15 CA 81 and 15 CA 82
ANTHONY SCOTT
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case Nos. 12 CR 244 & 12 CR 280
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 15, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT ANTHONY SCOTT
PROSECUTING ATTORNEY PRO SE
JUSTIN T. RADIC 15708 McConnelsville Road
ASSISTANT PROSECUTOR Caldwell, Ohio 43724
20 South Second Street, Fourth Floor
Newark, Ohio 43055
Licking County, Case Nos. 15 CA 81 and 15 CA 82 2
Wise, J.
{¶1} Appellant Anthony Scott appeals from the decision of the Court of Common
Pleas, Licking County, which denied his petition for post-conviction relief (“PCR”)
regarding his 2013 convictions. Appellee is the State of Ohio.
{¶2} On May 4, 2012, under case 2012-CR-00244, Appellant Scott was indicted
in Licking County on counts of felony possession of cocaine, attempted murder, felonious
assault, trafficking in cocaine with a juvenile specification, and one count of
misdemeanor possession of drug paraphernalia. Additionally, appellant was indicted on
several attendant firearm and forfeiture specifications.
{¶3} On May 18, 2012, appellant was additionally indicted under case number
12-CR-00280 for having weapons while under a disability. The indictments were then
consolidated by the trial court.
{¶4} On April 30, 2013, appellant appeared before the trial court for a change of
plea hearing. At this hearing, in exchange for appellant's plea, the State agreed to
dismiss the firearm specifications associated with Counts I through IV and make a jointly
recommended sentence of twelve years. Appellant agreed to withdraw his previously
entered not guilty pleas, to enter Alford pleas to the remaining counts, and withdraw his
pending motion to dismiss and to suppress.
{¶5} Following a plea colloquy, the trial court accepted appellant's Alford pleas.
The trial court thereupon sentenced appellant under case 2012-CR-00244 to a four-year
prison term on Count I, a five-year prison term on Count II, a one-year prison term on
Count IV, and a thirty-day jail sentence on Count V. The court merged Counts II and III
for sentencing. Appellant was also sentenced to three years in prison under case 2012-
Licking County, Case Nos. 15 CA 81 and 15 CA 82 3
CR-00280. The trial court ordered all counts to run consecutively. Appellant was granted
370 days of credit towards his sentence. The court also issued, inter alia, post release
control orders in each case.
{¶6} Appellant then filed a direct appeal to this Court, raising issues of speedy
trial rights, manifest weight of the evidence, and sufficiency of the evidence. See State
v. Scott, 5th Dist. Licking No. 13-CA-45, 2014-Ohio-456 (“Scott I”). In our decision issued
February 7, 2014, we overruled the assigned errors based on our conclusion that
appellant had waived said claims via his Alford guilty pleas. The Ohio Supreme Court
did not accept jurisdiction to hear his requested appeal from our decision. See State v.
Scott, 142 Ohio St.3d 1519, 33 N.E.3d 66, 2015-Ohio-2341.
{¶7} On August 31, 2015, appellant filed a motion for post-conviction relief in the
trial court, alleging that trial counsel was ineffective for advising him to enter his Alford
pleas.1 Appellant attached his own affidavit in support of the petition.
{¶8} On October 12, 2015, the trial court denied appellant’s post-conviction
petition, finding it to be untimely and inadequately supported by the attached evidence.
{¶9} Appellant filed a notice of appeal as to each of the two trial court case
numbers on October 26, 2015.2 He herein raises the following sole Assignment of Error:
1 In his present brief, appellant asserts this action was “on the advice” of this Court, in
apparent reference to our judgment entry of February 27, 2015 denying his application to
reopen appeal. Appellant’s Brief at 3. However, the judgment entry in question merely
observed that his “potential relief, if any” would be via post-conviction proceedings or a
motion to withdraw plea.
2Despite appellant’s wording on the cover of his brief that this appeal is “consolidated,”
no such order had been issued by this Court at the time of briefing by the parties.
Nonetheless, we have prepared a separate consolidation order sua sponte and will thus
provide a single memorandum-opinion under these procedural circumstances.
Licking County, Case Nos. 15 CA 81 and 15 CA 82 4
{¶10} “I. TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT WHEN
IT FAILED TO HOLD A HEARING PURSUANT TO R.C. 2953.21 AND FAILED TO
VACATE THE JUDGMENT OF CONVICTION FOR REASON THAT TRIAL COUNSEL
WAS INEFFECTIVE WHEN COUNSEL GAVE INCORRECT LEGAL ADVICE THAT
INDUCED DEFENDANT TO ENTER A[N] UNKNOWINGLY [SIC], INVOLUNTARILY
[SIC], AND UNINTELLIGENT AFFORD [SIC] / NO CONTEST PLEAS [SIC].”
I.
{¶11} In his sole Assignment of Error, appellant essentially maintains the trial
court erred in denying his post-conviction petition without conducting a hearing, where
he has asserted that he believed at trial he was entering an Alford “no contest” plea. We
disagree.
{¶12} We first note the pertinent jurisdictional time requirements for a post-
conviction petition (not involving a death sentence) are set forth in R.C. 2953.21(A)(2)
as follows: “Except as otherwise provided in section 2953.23 of the Revised Code, a
petition under division (A)(1) of this section shall be filed no later than three hundred
sixty-five days after the date on which the trial transcript is filed in the court of appeals in
the direct appeal of the judgment of conviction or adjudication ***. If no appeal is taken,
except as otherwise provided in section 2953.23 of the Revised Code, the petition shall
be filed no later than three hundred sixty-five days after the expiration of the time for filing
the appeal.”
{¶13} In order for a trial court to recognize an untimely or successive post-
conviction petition pursuant to R.C. 2953.23(A)(1), both of the following requirements
must apply:
Licking County, Case Nos. 15 CA 81 and 15 CA 82 5
{¶14} “(a) Either the petitioner shows that the petitioner was unavoidably
prevented from discovery of the facts upon which the petitioner must rely to present the
claim for relief, or, subsequent to the period prescribed in division (A)(2) of section
2953.21 of the Revised Code or to the filing of an earlier petition, the United States
Supreme Court recognized a new federal or state right that applies retroactively to
persons in the petitioner's situation, and the petition asserts a claim based on that right.
{¶15} “(b) The petitioner shows by clear and convincing evidence that, but for
constitutional error at trial, no reasonable factfinder would have found the petitioner guilty
of the offense of which the petitioner was convicted * * *.”
{¶16} A court has no jurisdiction to hear an untimely petition for post-conviction
relief unless the movant meets the requirements in R.C. 2953.23(A). State v. Demastry,
5th Dist. Fairfield No. 05CA14, 2005-Ohio-4962, ¶ 15.
{¶17} In the case sub judice, we note the transcript in appellant’s direct appeal
(Scott I) was filed on June 25, 2013. Appellant filed his post-conviction motion on August
31, 2015, nearly eight-hundred days later, well past the aforementioned statutory
deadline of three-hundred sixty-five days. Despite this, having reviewed the record and
the pertinent briefs, we find appellant completely fails to demonstrate compliance with
the untimeliness requirements of R.C. 2953.23(A)(1). Cf. State v. Sturkey, 5th Dist.
Muskingum No. CT2006-0087, 2007-Ohio-5701, ¶¶ 11-18. Furthermore, although it is
probably an academic observation at this point, we have previously concluded: “ *** [I]t
is questionable that the ‘constitutional error at trial’ criterion of R.C. 2953.23(A)(1)(b) can
be met where the defendant seeking PCR relief [sic] was convicted pursuant to a guilty
Licking County, Case Nos. 15 CA 81 and 15 CA 82 6
plea, not as a result of a trial.” State v. Pepper, 5th Dist. Ashland No. 13 COA 019, 2014–
Ohio–364, ¶ 26.
{¶18} In regard to appellant’s claim of deprivation of a hearing, we note trial court's
decision regarding whether or not to conduct an evidentiary hearing in post-conviction
matters is governed by the standard of abuse of discretion. State v. Bocook, 5th Dist.
Muskingum No. CT2015-0025, 2015-Ohio-3996, ¶ 22, citing State ex rel. Richard v.
Seidner (1996), 76 Ohio St.3d 149, 151, 666 N.E.2d 1134. Furthermore, some Ohio
courts have held that a hearing on the merits of a post-conviction petition is unnecessary
where the petition was not timely filed. See, e.g., State v. Goings, 6th Dist. Lucas No. L-
15-1063, 2016-Ohio-544, ¶ 11; State v. Foster, 10th Dist. Franklin No. 09AP–227, 2009–
Ohio–5202, ¶ 8.
{¶19} However, in the interest of justice, we make the following observations. In
our decision on appellant’s direct appeal, we stated: “While we believe the plea forms
arguably support Appellant's claim he intended to enter an Alford no contest plea, we
have no uncertainty as to what plea he actually entered during the change of plea
hearing. [The transcript reveals] the prosecutor specifically states the defendant will be
entering an Alford guilty plea on three separate times. *** At no time during the
sentencing hearing did Appellant or his counsel ever correct the prosecutor or trial court,
or assert a misunderstanding as to the type of plea being entered.” Scott I at ¶¶ 15-16.
We then concluded that appellant had entered Alford guilty pleas to the charges. Id. at ¶
18.
{¶20} Appellant presently seeks to convince us otherwise by directing us to the
affidavit in support of his PCR petition, wherein he averred inter alia that he entered his
Licking County, Case Nos. 15 CA 81 and 15 CA 82 7
plea on April 30, 2013 “on the mistaken belief that I was actually entering a [sic] Alford
No Contest” and that “[h]ad I known that the Alford plea I entered would prevent me from
challenging my conviction I would not have entered a [sic] Alford plea and chose to
pursue a plea that would not prevent a challenge to my conviction on appeal, such as a
No Contest Plea.” See Petition for Post-Conviction Relief, August 31, 2015.
{¶21} Nonetheless, a defendant advancing a post-conviction petition is required
to present evidence which meets a minimum level of cogency to support his or her
claims. See State v. Amstutz, 5th Dist. Stark No. 2000-CA-00047, 2001 WL 46324, citing
State v. Cole (1982), 2 Ohio St.3d 112, 115. A petitioner's self-serving affidavit generally
does not meet his or her minimum level of cogency. Id., citing State v. Kapper (1983), 5
Ohio St.3d 36, 38. Accordingly, upon review, we find no abuse of discretion, under the
present circumstances, in the trial court's decision to rule upon appellant’s PCR petition
without holding a hearing.
{¶22} Appellant's sole Assignment of Error is therefore overruled.
{¶23} For the foregoing reasons, the judgment of the Court of Common Pleas,
Licking County, Ohio, is hereby affirmed.
By: Wise, J.
Farmer, P. J., and
Hoffman, J., concur.
JWW/d 0525