State v. Crossley

[Cite as State v. Crossley, 2020-Ohio-6640.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2020-CA-10
:
v. : Trial Court Case Nos. 2018-CR-446
: and 2018-CR-601
VON CROSSLEY :
: (Criminal Appeal from
Defendant-Appellant : Common Pleas Court)
:
...........
OPINION
Rendered on the 11th day of December, 2020.
...........
JOHN M. LINTZ, Atty. Reg. No. 0097715, Assistant Prosecuting Attorney, Clark County
Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
VON CROSSLEY, Inmate No. 748-992, Chillicothe Correctional Institution, P.O. Box
5500, Chillicothe, Ohio 45601
Defendant-Appellant, Pro Se
.............
WELBAUM, J.
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{¶ 1} Defendant-appellant, Von Crossley, appeals pro se from the judgment of the
Clark County Court of Common Pleas denying his petition for post-conviction relief. For
the reasons outlined below, the judgment of the trial court will be reversed, and the matter
will be remanded for further proceedings consistent with this opinion.
Facts and Course of Proceedings
{¶ 2} Following a June 28, 2018 traffic stop, Crossley was indicted on multiple
weapon and drug offenses in Clark C.P. Nos. 2018-CR-446 and 2018-CR-530. In Case
No. 2018-CR-446, Crossley was charged with single counts of carrying a concealed
weapon in violation of R.C. 2923.12, improperly handling firearms in a motor vehicle in
violation of R.C. 2923.16(B), and receiving stolen property in violation of R.C. 2913.51(A).
The charge for receiving stolen property also included a firearm specification. In Case
No. 2018-CR-530, Crossley was charged with aggravated trafficking in drugs in violation
of R.C. 2925.03(A)(2) and aggravated possession of drugs in violation of R.C.
2925.11(A). Both of those charges also carried a firearm specification.
{¶ 3} On August 8, 2018, Crossley filed a motion to suppress. A hearing on the
motion was scheduled for September 14, 2018. However, before the suppression
hearing began, the trial court arraigned Crossley in Clark C.P. No. 2018-CR-601, which
was filed to add a forfeiture specification to the already existing indictment in Case No.
2018-CR-530. Therefore, the charges in Case No. 2018-CR-601 were the same as in
Case No. 2018-CR-530; the only difference was the inclusion of the forfeiture
specification.
{¶ 4} Crossley’s suppression hearing commenced as scheduled. During the
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suppression hearing, three police officers testified and described the facts of the traffic
stop in question. After a need for additional testimony was revealed, the trial court
continued the hearing in order to let the defense subpoena more police officers. The
suppression hearing was never reconvened, however, because Crossley entered a plea
agreement and pled guilty to all the charges in both cases. In exchange for Crossley’s
guilty plea, the State agreed to dismiss the charges in Case No. 2018-CR-530 and to not
bring additional proceedings related to a search warrant that had been executed at
Crossley’s home on August 18, 2018. The State also agreed to a presentence
investigation being conducted for purposes of sentencing. Crossley further agreed to
forfeit $195 in U.S. currency.
{¶ 5} At Crossley’s plea hearing, the trial court conducted a Crim.R. 11 plea
colloquy. The trial court also advised Crossley that it was not going to merge the carrying
a concealed weapon and improperly handling firearms in a motor vehicle offenses, based
on this court’s decision in State v. Walker, 2d Dist. Montgomery No. 23302, 2010-Ohio-
2125. The trial court, however, advised counsel that the court would accept additional
research on the merger issue and that it would consider any such research before
Crossley’s sentencing hearing. Crossley’s trial counsel did not submit any additional
research for the trial court to consider. Crossley’s trial counsel also did not object when
the trial court failed to merge the carrying a concealed weapon and improperly handling
firearms offenses at sentencing.
{¶ 6} With regard to Case No. 2018-CR-446, the trial court sentenced Crossley to
one year in prison for carrying a concealed weapon, one year in prison for improperly
handling firearms in a motor vehicle, and one year in prison for receiving stolen property.
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Each of those sentences were ordered to run consecutively for a total prison term of three
years. The firearm specification attached to the receiving stolen property offense was
merged with the firearm specifications attached to the drug offenses in Case No. 2018-
CR-601.
{¶ 7} In Case No. 2018-CR-601, the trial court merged the two drug offenses, and
the State elected for Crossley to be sentenced on the aggravated trafficking offense.
The trial court sentenced Crossley to 8 years in prison for aggravated trafficking and one
year in prison for the attendant firearm specification, making his sentence a total of nine
years in prison. The trial court ordered the nine-year sentence in Case No. 2018-CR-
601 to run consecutively with the three-year sentence in Case No. 2018-CR-446, for a
total, aggregate sentence of 12 years in prison.
{¶ 8} Crossley appealed from his convictions in both cases. On appeal, Crossley
raised two assignments of error arguing that: (1) the record did not clearly and
convincingly support the sentence imposed by the trial court; and (2) the imposition of
maximum sentences was contrary to law. This court overruled both of Crossley’s
assignments of error and affirmed the judgments of the trial court in State v. Von Crossley,
2d Dist. Clark No. 2018-CA-121, 2019-Ohio-2938.
{¶ 9} On October 7, 2019, Crossley filed an application to reopen his appeal
pursuant to App.R. 26(B). Crossley’s application raised 11 issues that he claimed his
appellate counsel should have, but did not, raise in his appeal. Of those 11 issues, we
found that one presented a colorable claim of ineffective assistance of appellate counsel.
That claim was whether appellate counsel was ineffective for failing to raise the issue of
whether Crossley’s carrying a concealed weapon and improperly handling firearms
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offenses should have merged as allied offenses of similar import, and whether Crossley’s
trial counsel was ineffective for failing to object to the trial court’s decision not to merge
those offenses. We therefore granted Crossley’s application for reopening as to that
claim only and ordered the case to proceed as on an initial appeal.
{¶ 10} After granting Crossley’s application for reopening, we appointed Crossley
a new appellate counsel. Crossley’s new counsel filed a merit brief arguing that his trial
counsel was ineffective for not providing research on the merger issue and for not
objecting when the trial court failed to merge the carrying a concealed weapon and
improperly handling firearms offenses at sentencing. As required by App.R. 26(B)(7),
counsel also argued that Crossley’s prior appellate counsel was ineffective for failing to
raise the merger/ineffective assistance issue on appeal. Those issues are currently
pending before this court in Clark App. No. 2018-CA-121.
{¶ 11} On November 22, 2019, approximately two months after Crossley filed his
application to reopen and 303 days after Crossley filed the trial transcript in his direct
appeal, Crossley filed a timely petition for post-conviction relief. See R.C. 2953.21(A)(2)
(requiring a petition for post-conviction relief to be filed no later than 365 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). In the petition, Crossley raised four ineffective assistance of
counsel claims. Specifically, Crossley argued that he received ineffective assistance
because:
1. Trial counsel sent substitute counsel, who did not know much about
his case, to represent him at a court hearing where substitute
counsel coerced him into entering a guilty plea instead of requesting
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a continuance of his suppression hearing.
2. Substitute counsel coerced him into entering a guilty plea by falsely
telling him that he would go to trial that day if he did not enter a guilty
plea and by leading him to believe that he would not receive more
than seven years in prison if he accepted the State’s plea offer and
pled guilty to the charges.
3. Trial counsel failed to research whether the charges in Case No.
2018-CR-446 could be served concurrently or would merge as allied
offenses.
4. Trial Counsel did not complete the suppression hearing prior to his
guilty plea and made the decision not to complete the suppression
hearing without his permission.
{¶ 12} Crossley filed four affidavits from his friends and family in support of his
petition for post-conviction relief. The affiants were Crossley’s mother and father, and
Crossley’s friends, Timothy Tyler and Stephan Straughter. Each of the affiants averred
to being present at court sometime before Crossley entered his guilty plea and witnessing
Crossley’s trial counsel tell Crossley that if he accepted the State’s plea offer, he would
receive no more than seven years in prison.
{¶ 13} Crossley also attached his own affidavit to his petition for post-conviction
relief. In his affidavit, Crossley averred that at a September 28, 2018 hearing, his trial
counsel told him and his friends and family in attendance that he would not receive more
than seven years in prison if he accepted the State’s plea offer and pled guilty to the
charges in the indictment. Crossley also averred that when he later appeared at court
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on October 3, 2018, he was under the impression that he was there to complete the
suppression hearing, not to enter a plea. Crossley further averred that his trial counsel
sent a substitute counsel, whom Crossley had never met before, to represent him that
day.
{¶ 14} According to Crossley, the substitute counsel knew nothing about the
suppression hearing and falsely told him that his case would proceed to trial that day if
he did not enter a guilty plea at that time. Crossley averred that the substitute counsel’s
conduct led him to believe that he had no other choice but to plead guilty. Crossley also
averred that he had the substitute counsel contact his trial counsel via text message to
ask what he should do, and that the substitute counsel led him to believe that his trial
counsel advised him to accept the State’s plea offer. Crossley averred that based on
his previous discussions with trial counsel, he believed that he would receive no more
than seven years in prison if he accepted the State’s plea offer. Crossley’s affidavit
further indicated that but for trial and substitute counsel’s conduct, Crossley would have
chosen to complete the suppression hearing before entering a plea.
{¶ 15} On January 24, 2020, the trial court issued an entry denying Crossley’s
petition for post-conviction relief. In denying the petition, the trial court applied the two-
prong ineffective assistance analysis in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984) to Crossley’s first three ineffective assistance claims. In
doing so, the trial court found that Crossley had failed to satisfy the second prong of the
Strickland analysis for each of those claims. Specifically, the trial court found that
Crossley had failed to establish that the outcome of his plea and sentencing hearings
would have been different but for counsel’s alleged deficient performance. In so holding,
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the trial court did not discuss the supporting affidavits attached to Crossley’s petition.
The trial court also did not address Crossley’s fourth ineffective assistance claim, which
concerned his counsel’s failure to complete the suppression hearing prior to his entering
his guilty plea.
{¶ 16} Crossley now appeals from the trial court’s judgment denying his petition
for post-conviction relief, raising six assignments of error for review.
Standard of Review and Jurisdictional Matters
{¶ 17} This court reviews the denial of a petition for post-conviction relief for which
no hearing was held under an abuse-of-discretion standard. State v. Harden, 2d Dist.
Montgomery No. 23617, 2010-Ohio-3343, ¶ 10. “A trial court abuses its discretion when
it makes a decision that is unreasonable, unconscionable, or arbitrary.” (Citation
omitted.) State v. Darmond, 135 Ohio St. 3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34.
An abuse of discretion “most often involves an ‘unreasonable’ decision that is not
supported by a sound reasoning process.” State v. Mackey, 2018-Ohio-516, 106 N.E.3d
241, ¶ 8 (2d Dist.), citing State v. Gondor, 112 Ohio St. 3d 377, 2006-Ohio-6679, 860
N.E.2d 77, ¶ 58. “Abuse-of-discretion review is deferential and does not permit an
appellate court to simply substitute its judgment for that of the trial court.” Darmond at
¶ 34, citing State v. Morris, 132 Ohio St. 3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14.
{¶ 18} The State claims that this court does not have jurisdiction to consider the
instant appeal because Crossley’s notice of appeal was not timely filed. We disagree.
App.R. 4(A)(1) requires a party to file a notice of appeal within 30 days of the date of the
judgment entry from which he or she appeals. The record indicates that Crossley filed
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his notice of appeal on February 21, 2020, only 28 days after the trial court issued its
January 24, 2020 entry denying his petition for post-conviction relief. Therefore, contrary
to the State’s claim otherwise, Crossley’s notice of appeal was filed within the 30-day
deadline.
{¶ 19} The State also claims that this court lacks jurisdiction to consider the instant
appeal because Crossley’s direct appeal in this matter was reopened and is currently
pending before this court. The State provides no authority in support of this claim.
Upon review, we find that the claim lacks merit and that we do have jurisdiction to review
both appeals. See, e.g., State v. Holland, 5th Dist. Licking No. 11 CA 47, 2013-Ohio-
904, and State v. Holland, 5th Dist. Licking No. 12 CA 56, 2013-Ohio-905 (appellate court
contemporaneously reviewed direct and post-conviction-relief appeals arising from same
trial court case).
{¶ 20} Having found no merit to the State’s jurisdictional claims, we will proceed to
review Crossley’s six assignments of error in this appeal. For ease of discussion, we
will review the assignments of error out of order. We note that Crossley’s first four
assignments of error mirror the ineffective assistance claims raised in his petition for post-
conviction relief.
Third Assignment of Error
{¶ 21} Under his third assignment of error, Crossley contends that his trial counsel
was ineffective because counsel failed to research whether the charges in Case No.
2018-CR-446 could be served concurrently or would merge as allied offenses. This
claim relates to matters that are contained within the record; therefore, it should have
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been raised in Crossley’s direct appeal. See State v. Lane, 2d Dist. Greene No. 2014-
CA-54, 2015-Ohio-2712, ¶ 13, citing State v. Wilson, 2d Dist. Montgomery No. 23129,
2013-Ohio-180, ¶ 47-48. “If an alleged constitutional error [such as ineffective
assistance of counsel] could have been raised and fully litigated on direct appeal, the
issue is res judicata and may not be litigated in a post[-]conviction proceeding.”
(Emphasis deleted.) State v. Franklin, 2d Dist. Montgomery No. 19041, 2002-Ohio-
2370, ¶ 9, citing State v. Perry, 10 Ohio St. 2d 175, 180, 226 N.E.2d 104 (1967). Accord
Lane at ¶ 13. Whether Crossley’s counsel was ineffective for failing to research the
merger issue is also the subject of Crossley’s reopened direct appeal that is currently
pending before this court in Case No. 2018-CA-121. Since it was improper for Crossley
to raise that issue in his petition for post-conviction relief, and because the issue is
currently pending in Crossley’s reopened direct appeal, it would be inappropriate for this
court to review the issue in the instant appeal.
{¶ 22} Crossley’s third assignment of error is overruled.
First and Second Assignments of Error
{¶ 23} Because they are interrelated, we will address Crossley’s first and second
assignments of error together. Under his first assignment of error, Crossley contends
that he received ineffective assistance because his trial counsel sent substitute counsel,
who knew little about his case, to represent him at the plea hearing. In his supporting
affidavit, Crossley claimed that on the day he entered his plea, he thought he was at court
to complete the hearing on his motion to suppress. Crossley claims that because
substitute counsel was unfamiliar with his case, counsel proceeded with the plea
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proceedings and coerced him to plead guilty as opposed to requesting a continuance of
his suppression hearing.
{¶ 24} Under his second assignment of error, Crossley specified that substitute
counsel coerced him into pleading guilty by falsely telling him that he would go to trial that
day if he did not enter a guilty plea. Crossley also claimed that he was led to believe
that he would not receive more than seven years in prison for all his offenses if he
accepted the State’s plea offer.
{¶ 25} “To establish ineffective assistance of counsel, a defendant must
demonstrate both that 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, 466 U.S. 668 at 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 and State v. Bradley, 42
Ohio St. 3d 136, 142, 538 N.E.2d 373 (1989).
{¶ 26} “ ‘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. 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. “A trial court may dismiss a petition for
post[-]conviction relief without a hearing ‘where 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.’ ” State v.
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Jones, 2d Dist. Clark No. 2018-CA-119, 2019-Ohio-2250, ¶ 13, quoting State v. Calhoun,
86 Ohio St. 3d 279, 714 N.E.2d 905 (1999), paragraph two of the syllabus. (Other citation
omitted.)
{¶ 27} When making such a determination, a trial court has the discretion to weigh
the credibility of any affidavits submitted with the petition. Calhoun at 284. “Generally,
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.) “ ‘Though we recognize that every affidavit submitted by
a post-conviction relief petitioner is to some degree or another “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 at 284. “Nevertheless, ‘the trial court may, under appropriate circumstances in
post[-]conviction relief proceedings, deem affidavit testimony to lack credibility without
first observing or examining the affiant.’ ” Id., quoting Calhoun at 284.
{¶ 28} In assessing the credibility of affidavits, the Supreme Court in Calhoun
provided the following relevant factors to be considered:
(1) whether the judge reviewing the post[-]conviction 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
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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.
Calhoun at 285, citing State v. Moore, 99 Ohio App. 3d 748, 754-756, 651 N.E.2d 1319
(1st Dist.1994).
{¶ 29} “ ‘Depending on the entire record, one or more of these or other factors may
be sufficient to justify the conclusion that an affidavit asserting information outside the
record lacks credibility.’ ” Clark at ¶ 22, quoting Calhoun at 285. “ ‘Such a decision
should be within the discretion of the trial court.’ ” Id. “ ‘A trial court that discounts the
credibility of sworn affidavits should include an explanation of its basis for doing so in its
findings of fact and conclusions of law, in order that meaningful appellate review may
occur.’ ” Id.
{¶ 30} A trial court commits “prejudicial error by failing to include in the decision
and entry a sufficient explanation for its basis for discounting the credibility of sworn
affidavits in support of the appellant’s postconviction relief petition.” State v. Canada,
10th Dist. Franklin No. 16AP-7, 2016-Ohio-5948, ¶ 20, citing Calhoun at 285 and State v.
Jackson, 10th Dist. Franklin No. 03AP-1065, 2004-Ohio-6438, ¶ 11. (Other citations
omitted.) However, “ ‘where a petitioner relies upon affidavit testimony as the basis of
entitlement to postconviction relief, and the information in the affidavit, even if true, does
not rise to the level of demonstrating a constitutional violation, then the actual truth or
falsity of the affidavit is inconsequential.’ ” State v. Murillo, 2d Dist. Montgomery No.
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25958, 2014-Ohio-2097, ¶ 9, quoting Calhoun at 284.
{¶ 31} In this case, the trial court’s findings of fact and conclusions of law in its
entry denying Crossley’s petition for post-conviction relief indicate that the court
determined that even if Crossley’s allegations regarding his counsels’ conduct were true,
Crossley still did not establish an ineffective assistance claim because he failed to satisfy
the second prong of the Strickland analysis. The second prong of that analysis requires
Crossley to demonstrate that the conduct complained of affected the outcome of the plea
process, i.e., “ ‘but for counsel’s errors, he would not have pleaded guilty and would have
insisted on going to trial.’ ” State v. Romero, 156 Ohio St. 3d 468, 2019-Ohio-1839, 129
N.E.3d 404, ¶ 16, quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203
(1985).
{¶ 32} With regard to Crossley’s allegation that trial counsel inaccurately advised
him that he would receive no more than seven years in prison if he accepted the State’s
plea offer, it is well established that inaccurate predictions as to what sentence will be
imposed do not amount to ineffective assistance of counsel. See State v. Glass, 10th
Dist. Franklin No. 04AP-967, 2006-Ohio-229, ¶ 34, quoting Wiant v. United States, No.
2:04-CV-256, 2005 WL 1651716 (S.D.Ohio 2005) (“courts have held that, ‘where an
adequate guilty plea hearing has been conducted, an erroneous prediction or assurance
by defense counsel regarding the likely sentence does not constitute grounds for
invalidating a guilty plea on grounds of ineffective assistance of counsel’ ”); State v.
Bryant, 2013-Ohio-5105, 1 N.E.3d 878, ¶ 32 (10th Dist.) (finding that even if counsel had
misinformed appellant about the sentence, an attorney’s mere inaccurate prediction of a
sentence does not demonstrate the deficiency component of an ineffective assistance of
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counsel claim).
{¶ 33} At Crossley’s plea hearing, the trial court confirmed Crossley’s
understanding of the parties’ plea agreement, which did not include an agreement as to
the length of the sentence that would be imposed for Crossley’s offenses. The trial court
also specifically advised Crossley that the maximum possible prison sentence he could
receive for all of his offenses was 13.5 years, which Crossley stated he understood.
Therefore, at the time he entered his guilty plea, Crossley was put on notice that there
was a possibility that he could receive a sentence greater than seven years.
Accordingly, the trial court advisements at the plea hearing prevented the possibility of
any prejudice arising from counsel’s alleged statement that Crossley would receive no
more than seven years in prison.
{¶ 34} Crossley, however, also alleged in his petition and averred in his supporting
affidavit that, on the day he entered his guilty plea, substitute counsel falsely told him that
he would be forced to go to trial that day if he did not enter a guilty plea. The averments
in Crossley’s affidavit further indicate that but for this comment by substitute counsel,
Crossley would not have entered a plea, but would have waited to have his trial counsel
complete the suppression hearing in order to see whether the trial court would have
suppressed any of the State’s evidence against him. Because the outcome of the
suppression hearing could have potentially resulted in the suppression of evidence, it had
the potential to affect the outcome of Crossley’s case. Therefore, we find that Crossley’s
affidavit sufficiently raised a claim of prejudice arising from substitute counsel’s alleged
statement that Crossley would immediately proceed to trial if he did not enter a plea.
{¶ 35} Although it was within the trial court’s discretion to discredit Crossley’s
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affidavit, the trial court was required to include an explanation of its basis for doing so
when issuing its findings of fact and conclusions of law. Here, the trial court did not
mention the fact that Crossley filed supporting affidavits, let alone explain the court’s basis
for discrediting them. This court has held that, even when “a number of the Calhoun
factors apply to discount the credibility of * * * supporting affidavits[,] * * * it is not this
court’s place to judge the credibility of the affidavits[.]” Clark, 2017-Ohio-120, 80 N.E.3d
1251, at ¶ 23. Therefore, based on the facts of this case, we find that the trial court erred
by denying the first two ineffective assistance claims raised in Crossley’s petition for post-
conviction relief without including a sufficient explanation as to why it discounted the
credibility of the testimony in Crossley’s supporting affidavits.
{¶ 36} Crossley’s first and second assignments of error are sustained.
Fourth and Fifth Assignments of Error
{¶ 37} Crossley’s fourth and fifth assignments of error are also interrelated;
therefore, we will review them together as well. Under his fourth assignment of error,
Crossley contends that his trial counsel was ineffective because counsel did not complete
his suppression hearing before he entered his guilty plea, and because counsel made the
decision not to complete the suppression hearing without his permission. Under his fifth
assignment of error, Crossley contends that the trial court abused its discretion by failing
to address the foregoing claim in the entry denying his petition for post-conviction relief.
{¶ 38} Under R.C. 2953.21, findings of fact and conclusions of law are mandatory
if the trial court denies a petition for post-conviction relief. Calhoun, 86 Ohio St. 3d at
291, 714 N.E.2d 905, citing State v. Lester, 41 Ohio St. 2d 51, 322 N.E.2d 656 (1975)
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paragraph two of the syllabus. Accord State v. Quinn, 2017-Ohio-8107, 98 N.E.3d 1184,
¶ 27 (2d Dist.). “ ‘ “[T]he failure of a trial judge to make the requisite findings prevents
any meaningful judicial review, for it is the findings and the conclusions which an appellate
court reviews for error.” ’ ” Calhoun at 291, quoting State ex rel. Carrion v. Harris, 40
Ohio St. 3d 19, 530 N.E.2d 1330 (1988), quoting State v. Mapson, 1 Ohio St. 3d 217, 219,
438 N.E.2d 910 (1982).
{¶ 39} A trial court, however, “need not discuss every issue raised by appellant or
engage in an elaborate and lengthy discussion in its findings of fact and conclusions of
law.” Id. “The findings need only be sufficiently comprehensive and pertinent to the
issue to form a basis upon which the evidence supports the conclusion.” Id., citing State
v. Clemmons, 58 Ohio App. 3d 45, 46, 568 N.E.2d 705 (1989). (Other citation omitted.)
Therefore, “a trial court properly denies a petition for postconviction relief, made pursuant
to R.C. 2953.21, and issues proper findings of fact and conclusions of law where such
findings are comprehensive and pertinent to the issues presented, where the findings
demonstrate the basis for the decision by the trial court, and where the findings are
supported by the evidence.” Id.
{¶ 40} In this case, the trial court’s entry denying Crossley’s petition for post-
conviction relief did not specifically address Crossley’s claim that his trial counsel was
ineffective for failing to complete the suppression hearing. The findings of fact and
conclusions of law contained in the entry are also not pertinent to that issue. Therefore,
because there is no ruling from which we can determine the trial court’s basis for denying
Crossley’s fourth ineffective assistance claim, we are unable to review that claim on
appeal. See, generally, State v. Reed, 2016-Ohio-7416, 72 N.E.3d 1196, ¶ 29 and State
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v. Delossantos, 9th Dist. Loraine No. 11CA009951, 2012-Ohio-1383, ¶ 20 (finding that
there was no trial court ruling for the appellate court to review).
{¶ 41} Crossley’s fourth and fifth assignments of error are sustained to the extent
that Crossley’s fourth ineffective assistance claim was not ruled on by the trial court.
Sixth Assignment of Error
{¶ 42} Under his sixth assignment of error, Crossley contends that both his trial
and appellate counsel were ineffective in failing to provide him with a copy of his discovery
packet. Crossley, however, did not raise this issue in his petition for post-conviction
relief. Because Crossley did not first raise this issue in the trial court, the claim is not
properly before this court on appeal. State v. Thomas, 2d Dist. Darke No. 2013-CA-11,
2014-Ohio-2666, ¶ 21, citing State v. Webb, 2d Dist. Darke No. 06-CA-1694, 2007-Ohio-
3446, ¶ 1 and State v. Garrett, 7th Dist. Belmont No. 06 BE 67, 2007-Ohio-7212, ¶ 8 (“the
appellate court can only address those arguments presented to the trial court in the
original petition; any new arguments cannot be considered for the first time on appeal”).
{¶ 43} In addition, it is well established that claims alleging the ineffective
assistance of appellate counsel are not cognizable in post-conviction proceedings and
that a petition for post-conviction relief is not the appropriate means by which to raise that
issue. State v. Owensby, 2d Dist. Montgomery No. 27607, 2018-Ohio-2967, ¶ 12, citing
State v. Murnahan, 63 Ohio St. 3d 60, 584 N.E.2d 1204 (1992), paragraph one of the
syllabus; State v. Moore, 10th Dist. Franklin No. 14AP-390, 2015-Ohio-426, ¶ 8; State v.
Isham, 2d Dist. Montgomery No. 15136, 1995 WL 502255, *3 (Aug. 23, 1995); State v.
Leigh, 2d Dist. Montgomery No. 18841, 2001 WL 1345961, *1 (Nov. 2, 2001). The
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proper avenue of relief for such a claim would instead be through an application to reopen
under App.R. 26(B), which Crossley has already pursued.
{¶ 44} Crossley’s sixth assignment of error is overruled.
Conclusion
{¶ 45} Having sustained Crossley’s first, second, fourth, and fifth assignments of
error, the judgment of the trial court denying Crossley’s petition for post-conviction relief
is reversed, and the matter is remanded to the trial court. On remand, the trial court shall
examine Crossley’s supporting affidavits and consider all the relevant factors, including
those specifically mentioned in Calhoun, for purposes of determining the credibility of the
affidavits and whether or not the affidavits present sufficient operative facts in support of
Crossley’s first and second ineffective assistance claims. The trial court shall also
address Crossley’s fourth ineffective assistance claim in its decision.
{¶ 46} Judgment reversed and remanded.
.............
DONOVAN, J. and HALL, J., concur.
Copies sent to:
John M. Lintz
Von Crossley
Hon. Douglas M. Rastatter