State v. Lewis

[Cite as State v. Lewis, 2019-Ohio-3031.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
CASE NO. 8-19-08
PLAINTIFF-APPELLEE,
v.
JASMINE D. LEWIS, OPINION
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court
Trial Court No. CR 17 06 0180
Judgment Affirmed
Date of Decision: July 29, 2019
APPEARANCES:
Kort Gatterdam and David F. Hanson for Appellant
Eric C. Stewart for Appellee
Case No. 8-19-08
WILLAMOWSKI, J.
{¶1} Defendant-appellant Jasmine D. Lewis (“Lewis”) appeals the judgment
of the Logan County Court of Common Pleas, alleging that that trial court erred in
dismissing her petition for postconviction relief (“petition”). For the reasons set
forth below, the judgment of the trial court is affirmed.
Facts and Procedural History
{¶2} On June 13, 2017, Lewis was indicted on one count of complicity to
aggravated burglary in violation of R.C. 2911.11(A)(1), R.C. 2923.03; one count of
complicity to aggravated robbery in violation of R.C. 2911.01(A)(1), R.C. 2923.03;
and one count of complicity to murder in violation of R.C. 2903.02, R.C. 2923.03.
Doc. 1. These charges came with a firearm specification. Doc. 1. On June 19,
2017, Lewis pled not guilty to these charges. Doc. 10.
{¶3} On August 14, 2017, Lewis appeared before the trial court for a change
of plea hearing. Change of Plea Hearing Tr. 1. Pursuant to a plea agreement, the
State offered to dismiss the charge of complicity to aggravated burglary, the charge
of complicity to aggravated robbery, and the firearm specification if Lewis agreed
to plead guilty to one count of complicity to murder in violation of R.C. 2903.02.
Change of Plea Hearing Tr. 3, 14. Doc. 55, 56. The penalty for the offense of
complicity to murder is set forth in R.C. 2929.02(B)(1), which reads, in its relevant
part, as follows:
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whoever is convicted of or pleads guilty to murder in violation of
section 2903.02 of the Revised Code shall be imprisoned for an
indefinite term of fifteen years to life.
R.C. 2929.02(B)(1).
{¶4} At her change of plea hearing, the trial court explained the penalty for
her crime in the following colloquy:
The Court: The offense carries with it a maximum fine of $15,000.
It is a life sentence with eligibility for parole after 15 years. Do
you understand the maximum sentence?
[Lewis]: Yes, sir.
Change of Plea Hearing Tr. at 9. (Emphasis added.) Lewis subsequently pled guilty
to one count of complicity to murder in violation of R.C. 2903.02. Doc. 56. The
trial court then found Lewis guilty and ordered a presentence investigation (“PSI”).
Change of Plea Hearing Tr. 14. Doc. 56.
{¶5} On September 21, 2017, Lewis appeared before the trial court for
sentencing. Sentencing Hearing Tr. 1. At this hearing, defense counsel stated the
following:
And the agreed-upon plea is 15 years to life. We would ask for a
lesser amount if the Court can see fit so that she may possibly
entertain the possibility of parole at an earlier date.
(Emphasis added.) Id. at 5. The trial court then sentenced Lewis to a term of life in
prison with parole eligibility after fifteen years. Doc. 58.
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{¶6} On October 24, 2017, Lewis filed her direct appeal with this Court.
Doc. 69. In this previous appeal, Lewis argued “that her counsel was ineffective for
not informing her that she could not get a sentence lower than life in prison with
parole eligibility after fifteen years.” State v. Lewis, 3d Dist. Logan No. 8-17-43,
2018-Ohio-1911, ¶ 6. The Supreme Court of Ohio has applied the Strickland test
for ineffective assistance of counsel in the context of guilty pleas. State v. Xie, 62
Ohio St. 3d 521, 524, 584 N.E.2d 715 (1992), citing Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In such a situation, “a
defendant must show that (1) counsel’s performance was deficient, and (2) there is
a reasonable probability that, but for counsel’s errors, the defendant would not have
pled guilty.” State v. Conley, 3d Dist. Marion No. 9-16-10, 2016-Ohio-8408, ¶ 10,
citing Xie at 524.
{¶7} To substantiate this claim, Lewis pointed to the fact that her defense
counsel asked the trial court for a sentence that would allow for Lewis to be eligible
for parole before she had served fifteen years when R.C. 2929.02(B)(1) mandates
“an indefinite term of fifteen years to life.” R.C. 2929.02(B)(1). Thus, this request
was predicated on an erroneous understanding of the law. Lewis asserted that her
attorney had promised her that she could receive a sentence of less than fifteen years
in prison. She further claimed that she would not have pled guilty if her attorney
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had correctly advised her that she would be ineligible for parole until after she had
served fifteen years of her sentence. Id.
{¶8} After examining the record, we determined that the trial court, at
Lewis’s change of plea hearing, had correctly informed her as to her parole
eligibility and her maximum sentence. Lewis at ¶ 7. Further, Lewis stated
affirmatively that she understood the maximum possible sentence and signed a
written plea agreement that stated her attorney had not suggested that she would
receive a more lenient sentence for pleading guilty. Id. Since the trial court had
fully informed Lewis as to the possible terms of her parole eligibility before she
pled guilty, we found that Lewis could not substantiate her claim that she would not
have pled guilty had her attorney correctly advised her on this issue. Id. Thus,
Lewis could not demonstrate that she was prejudiced and could not, therefore,
establish an ineffective assistance of counsel claim. Id. We then affirmed the
judgment of the trial court. Id. at ¶ 8.
{¶9} On December 3, 2018, Lewis filed a petition for postconviction relief
with three attached affidavits. Doc. 95. In one affidavit, Lewis’s defense counsel
admitted that he had incorrectly informed Lewis that she would be eligible for parole
before she had served fifteen years of her prison term. Doc. 95. In another affidavit,
Lewis’s mother, Nikkitta Peterson (“Peterson”), stated that she had urged Lewis to
plead guilty because of defense counsel’s statements regarding parole. Doc. 95. In
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the final affidavit, Lewis asserted that she would not have pled guilty but for her
attorney’s incorrect legal advice as to the terms of her parole eligibility. Doc. 95.
On December 13, 2018, the trial court dismissed Lewis’s petition, finding that her
claim was barred by res judicata. Doc. 97.
Assignment of Error
{¶10} On February 22, 2019, Lewis filed her notice of appeal. Doc. 107. On
appeal, she raises the following assignment of error:
The trial court abused its discretion in applying res judicata to
appellant’s ground for relief in her post-conviction petition as
appellant presented evidence dehors the record containing
sufficient operative facts to demonstrate that trial counsel was
ineffective in violation of the Sixth and Fourteenth Amendments
to the U.S. Constitution, Article 1, Sections 10 and 16, Ohio
Constitution, and R.C. 2953.21.
In her brief, Lewis reasserts the argument in her petition, claiming that her plea was
rendered involuntary due to the ineffective assistance of her defense counsel.
Legal Standard
{¶11} R.C. 2953.21 governs petitions for postconviction relief, providing “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. Lynn, 3d Dist.
Shelby No. 17-17-06, 2017-Ohio-8355, ¶ 9, quoting State v. Scott-Hoover, 3d Dist.
Crawford No. 3-04-11, 2004-Ohio-4804, ¶ 10. Postconviction review is a statutory
process and is not a constitutional right. State v. Workman, 3d Dist. Auglaize No.
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2-17-12, 2017-Ohio-7364, ¶ 17, citing State v. Keith, 176 Ohio App. 3d 260, 2008-
Ohio-741, 891 N.E.2d 1191, ¶ 26 (3d Dist.).
Under R.C. 2953.21,
Any person who has been convicted of a criminal offense * * *
who claims that there was such a denial or infringement of the
person’s rights as to render the judgment void or voidable under
the Ohio Constitution or the Constitution of the United States, *
* * may file a petition in the court that imposed sentence, stating
the grounds for relief relied upon, and asking the court to vacate
or set aside the judgment or sentence or to grant other
appropriate relief. The petitioner may file a supporting affidavit
and other documentary evidence in support of the claim for relief.
R.C. 2953.21(A)(1)(a). However, “[t]he filing of a petition for postconviction relief
does not automatically entitle the petitioner to an evidentiary hearing.” State v.
Andrews, 3d Dist. Allen No. 1-11-42, 2011-Ohio-6106, ¶ 11. Rather, “[a] hearing
on a petition for post-conviction relief is not necessary unless the trial court finds
that the petition sets forth substantive grounds for relief.” State v. Brown, 3d Dist.
Allen No. 1-11-68, 2012-Ohio-2126, ¶ 6, citing State v. Calhoun, 86 Ohio St. 3d
279, 282-83, 714 N.E.2d 905 (1999).
{¶12} When evaluating a petition for postconviction relief, “[t]he decision to
grant the petitioner an evidentiary hearing is left to the sound discretion of the trial
court.” Andrews, supra, at ¶ 11. For this reason, “[w]e review the trial court’s
dismissal of a post-conviction petition without a hearing for abuse of discretion.”
State v. Liles 3d Dist. Allen No. 1-16-33, 2017-Ohio-240, ¶ 10, quoting State v.
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Jeffers, 10th Dist. Franklin No. 10AP-1112, 2011-Ohio-3555, ¶ 23. “An abuse of
discretion is not merely an error of judgment.” State v. Sullivan, 2017-Ohio-8937,
102 N.E.3d 86, ¶ 20 (3d Dist.). “Rather, an abuse of discretion is present where the
trial court’s decision was arbitrary, unreasonable, or capricious.” State v. Howton,
3d Dist. Allen No. 1-16-35, 2017-Ohio-4349, ¶ 23.
{¶13} “A petition for post-conviction relief does not provide a petitioner a
second opportunity to litigate his conviction * * *.” State v. Cox, 5th Dist.
Muskingum No. CT2018-0075, 2019-Ohio-521, ¶ 11. Thus, res judicata may apply
to the claims raised in a petition for postconviction relief. State v. Perry, 10 Ohio
St.2d 175, 226 N.E.2d 104 (1967), eighth paragraph of the syllabus.
Under the doctrine of res judicata, a final judgment of conviction
bars a convicted defendant who was represented by counsel from
raising and litigating in any proceeding except an appeal from
that judgment, any defense or any claimed lack of due process
that was raised or could have been raised by the defendant at the
trial, which resulted in that judgment of conviction, or on an
appeal from that judgment.
State v. Baker, 3d Dist. Auglaize No. 2-16-07, 2016-Ohio-5669, ¶ 13, quoting Perry
at paragraph nine of the syllabus. If res judicata applies to a claim raised in a petition
for postconviction relief, an evidentiary hearing is not warranted on the matter. Liles
at ¶ 24, quoting State v. McKinney, 3d Dist. Defiance No. 4-11-01, 2011-Ohio-3521,
¶ 20.
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{¶14} “The presentation of competent, relevant, and material evidence
[dehors] the record may defeat the application of res judicata.” Cox at ¶ 11, citing
State v. Smith, 17 Ohio St. 3d 98, 101, 477 N.E.2d 1128, 1131-1132 (1985), fn. 1.
“To overcome the res judicata bar, evidence offered [dehors] the record must
demonstrate that the petitioner could not have appealed the constitutional claim
based upon information in the original record.” State v. Slagle, 4th Dist. Highland
No. 11CA22, 2012-Ohio-1936, ¶ 16, citing Ohio v. Franklin, 1st Dist. No. C-
930760, 1995 WL 26281, *7 (Jan. 25, 1995); State v. Lawson, 103 Ohio App. 3d
307, 315, 659 N.E.2d 362 (12th Dist. 1995). “This means that the evidence relied
upon must not be evidence which was in existence or available for use at the time
of trial or direct appeal, and finally, cannot be merely cumulative of the evidence
already presented.” State v. Murphy, 10th Dist. Franklin No. 00AP-233, 2000 WL
1877526, *3 (Dec. 26, 2000).
{¶15} Thus, the presentation of “evidence outside the record alone will not
guarantee the right to an evidentiary hearing.” State v. Curtis, 5th Dist. Muskingum
No. CT2018-0014, 2018-Ohio-2822, ¶ 19, quoting State v. Phillips, 9th Dist.
Summit No. 20692, 2002 WL 274637, *3 (Feb. 27, 2002). “[E]vidence presented
outside the record must meet some threshold standard of cogency; otherwise it
would be too easy to defeat the [Ohio Supreme Court’s] holding [in State v. Perry,
supra,] by simply attaching as exhibits evidence which is only marginally
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significant and does not advance the petitioner’s claim beyond mere hypothesis and
a desire for further discovery.” State v. Smith, 4th Dist. Scioto No. 16CA3774,
2017-Ohio-7659, ¶ 12, quoting State v. Coleman, 4th Dist. Hamilton No. C-900811,
1993 WL 74756, *7 (March 17, 1993).
{¶16} When affidavits are submitted with a petition for postconviction relief,
the trial court “may, in the sound exercise of discretion, judge the credibility of the
affidavits in determining whether to accept the affidavits as true statements of fact.”
Calhoun, supra, at paragraph one of the syllabus.
An affidavit, being by definition a statement that the affiant has
sworn to be truthful, and made under penalty of perjury, should
not lightly be deemed false. However, not all affidavits
accompanying a postconviction relief petition demonstrate
entitlement to an evidentiary hearing, even assuming the
truthfulness of their contents. Thus, 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.
Id. at 284. In Calhoun, the Supreme Court of Ohio set forth the following factors
to evaluate affidavits accompanying a petition for postconviction relief:
[A] trial court, in assessing the credibility of affidavit testimony
in so-called paper hearings, should consider all relevant factors.
Among those factors are (1) whether the judge reviewing the
postconviction 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
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the 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.
(Citations omitted.) Id. at 285, citing State v. Moore, 99 Ohio App. 3d 748, 754, 651
N.E.2d 1319 (1st Dist. 1994).
{¶17} “When a petitioner submits his claim that his guilty plea was
involuntary, a ‘record reflecting compliance with Crim.R. 11 has greater probative
value’ than a petitioner’s self-serving affidavit.” State v. Brehm, 3d Dist. Seneca
No. 13-97-05, 1997 WL 401824, *1 (July 18, 1997) (reviewing a petition for post-
conviction relief wherein the defendant argued the ineffective assistance of his
counsel rendered his guilty plea involuntary), quoting State v. Kapper, 5 Ohio St. 3d
36, 38, 448 N.E.2d 823 (1983) (holding that “[t]he dialogue between court and
defendant envisioned by Crim.R. 11 is substantively meaningful.”). “[E]vidence
[dehors] the record in the form of a petitioner’s own conclusory statements is not
sufficient to compel an evidentiary hearing when the record fails to corroborate the
petitioner’s allegations.” (Italics added.) Brehm at *1.
{¶18} “A plea of guilty waives a claim of ineffective assistance of counsel,
except to the extent the defects complained of caused the plea to be less than
knowing and voluntary.” State v. Jackson, 3d Dist. Allen No. 1-98-78, 1999 WL
253236, *1 (April 7, 1999). “To prevail on a claim of ineffective assistance of
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counsel in the context of a guilty plea, a defendant must show that (1) counsel’s
performance was deficient, and (2) there is a reasonable probability that, but for
counsel’s errors, the defendant would not have pled guilty.” Conley, supra, at ¶ 10,
citing Xie, supra, at 524.
{¶19} If the appellant does not establish one of these two prongs, the
appellate court does not need to consider the facts of the case under the other prong
of the test. State v. Baker, 3d Dist. Allen No. 1-17-61, 2018-Ohio-3431, ¶ 19, citing
State v. Walker, 2016-Ohio-3499, 66 N.E.3d 349, ¶ 20 (3d Dist.). “In evaluating
whether a petitioner has been denied effective assistance of counsel, this court has
held that the test is ‘whether the accused, under all the circumstances, * * * had a
fair trial and substantial justice was done.’” Calhoun, supra, at 289, quoting State
v. Hester, 45 Ohio St. 2d 71, 341 N.E.2d 304 (1976), paragraph four of the syllabus.
Legal Analysis
{¶20} A review of our prior opinion from Lewis’s direct appeal demonstrates
that she previously raised the exact same arguments and issues that now she raises
in her petition. In her prior appeal, Lewis
claim[ed] that her counsel was ineffective for not informing her
that she could not get a sentence lower than life in prison with
parole eligibility after fifteen years. In support, Lewis cite[d] to
an argument made by her attorney at sentencing for the
possibility of parole before fifteen years. Lewis allege[d] that
counsel’s representation that the sentence would be lower was
what caused her to agree to plead guilty.
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Lewis, supra, at ¶ 6. Thus, this Court was made aware of the fact that her attorney
was operating his representation of Lewis on an incorrect understanding of the
penalties that she would face by pleading guilty. Id.
{¶21} We noted that “[t]here was no question that anyone convicted of
violating R.C. 2903.02 ‘shall be imprisoned for an indefinite term of fifteen years
to life.’” Lewis, supra, at ¶ 6, quoting R.C. 2929.02(B)(1). Thus, her attorney’s
request at her sentencing hearing was, in view of the law, “improper.” Lewis, supra,
at ¶ 6. We further acknowledged that any advice from defense counsel to Lewis
that was consistent with defense counsel’s request at the change of plea hearing
would have been “contrary to statute.” Id.
{¶22} Her prior appeal demonstrates that Lewis was able to base her claim
that her defense counsel’s representation was deficient on some evidence that was
contained in the original record. Because of her defense counsel’s erroneous request
at her sentencing hearing, Lewis did not need evidence dehors the record to provide
some evidence for the first prong of the Strickland test. Thus, in her current appeal,
Lewis cites information in the original record to support her argument while
simultaneously asserting that she was not able to demonstrate her claim without the
three affidavits attached to her petition. See State v. Scheidel, 11th Dist. Ashtabula
No. 2004-A-0055, 2006-Ohio-198, ¶ 18.
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{¶23} In order to state substantive grounds for relief in her petition, Lewis
had to provide evidence that her attorney’s performance was deficient and that she
was thereby prejudiced. The three affidavits that Lewis filed with her petition do
not raise new issues or affect our prior analysis. Further, Lewis’s ineffective
assistance of counsel claim in her prior appeal was found to be without merit
because she could not demonstrate prejudice. Lewis, supra, at ¶ 6. These three
affidavits do not provide credible evidence that establish Lewis would not have pled
guilty if her attorney had correctly advised her as to the terms of her parole
eligibility.
{¶24} The affidavit from her attorney does provide some additional
information as to the extent of her counsel’s deficient performance. See State v.
Hicks, 12th Dist. Butler No. CA2004-07-170, 2005-Ohio-1237, ¶ 12 (holding that
res judicata applies where the affidavits were “cumulative to evidence contained in
the record * * *.”). However, this Court was already made aware of her counsel’s
deficient performance. Lewis, supra, at ¶ 6. Thus, this affidavit does not present a
new issue for review or establish that Lewis was unable to raise this claim on direct
appeal without resort to evidence dehors the record. See State v. Lovell, 12th Dist.
Butler Nos. CA2006-06-138, CA2006-07-158, 2007-Ohio-4352, ¶ 28; State v. Cole,
2 Ohio St. 3d 112, 443 N.E.2d 169 (1982), at syllabus.1 Further, this affidavit also
1
Cole establishes a rule for ineffective assistance of counsel claims that were not raised on direct appeal and
are being raised for the first time in a petition for postconviction relief. Cole, supra, at syllabus. However,
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does not provide any evidence that Lewis would not have pled guilty in the absence
of this erroneous legal advice. See State v. Bragenzer, 4th Dist. Pickaway No.
03CA1, 2003-Ohio-5597, ¶ 22. Thus, this affidavit neither alleges nor demonstrates
that Lewis was prejudiced by her attorney’s deficient performance. Doc. 95.
{¶25} While the affidavits from Lewis and Peterson allege that Lewis would
not have pled guilty if her attorney provided her with correct advice as to her parole
eligibility, the statements in their affidavits do not change our prior analysis for
several reasons. First, under the Calhoun factors, these affidavits do not provide
credible statements that establish prejudice. The judge who presided over Lewis’s
change of plea hearing and sentencing was the judge who ruled on Lewis’s petition
and was, therefore, aware of the circumstances of this case. Calhoun, supra, at 285.
In his ruling on the petition, the judge noted that he had “in three separate ways
advised that the sentence was fifteen years to life and it was a mandatory sentence
that * * * [had to be] imposed.” Doc. 105. Thus, the judge did not find that the
affidavits indicated that Lewis had been prejudiced by her defense counsel’s
deficient performance. Doc. 105.
Cole directs courts, in the process of applying res judicata to petitions for postconviction relief, to examine
whether the “issue could fairly have been determined without resort to evidence [dehors] the record.” Cole,
supra, at syllabus. In this case, we are engaging in this inquiry to determine whether an issue that was, in
fact, raised on direct appeal could have been fairly decided without reference to the evidence dehors the
record that was contained in the three affidavits with Lewis’s petition.
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{¶26} Further, Peterson is Lewis’s mother and is, therefore, a close relative
of the petitioner. Doc. 95. Calhoun, supra, at 285. See State v. Knowles, 8th Dist.
Cuyahoga No. 95239, 2011-Ohio-1685, ¶ 23 (holding that the affidavit of the
petitioner’s mother was self-serving and lacked credibility). Similarly, Lewis, as an
affiant, is most certainly interested in the outcome of this petition. State v. Combs,
100 Ohio App. 3d 90, 98, 652 N.E.2d 205 (1st Dist. 1994) (holding that “evidence
out of the record in the form of petitioner’s own self-serving affidavit alleging a
constitutional deprivation will not compel a hearing.”). These two affidavits also
contain similar language. Calhoun, supra, at 285. Lewis’s affidavit also contradicts
her statements before the trial court in the Crim.R. 11 colloquy. Thus, her
statements, as an affiant, contradict the evidence in the record. Id.
{¶27} Second, the trial court correctly instructed her as to the terms of her
parole eligibility before she pled guilty in the Crim.R. 11 colloquy. Lewis, supra,
at ¶ 7. In response, Lewis affirmed, on the record, that she understood that she
would not be eligible for parole until she had served fifteen years of her prison term.
Change of Plea Hearing Tr. 9. Thus, Lewis’s supporting affidavit has “the effect of
recanting prior statements [that she] made on the record” before she entered her
plea. Calhoun, supra, at 289. See Taylor v. Ross, 150 Ohio St. 448, 83 N.E.2d 222
(1948), third paragraph of the syllabus (holding that “[r]ecanting testimony
ordinarily is unreliable and should be subjected to the closest scrutiny.”). This Court
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has previously held that “a ‘record reflecting compliance with Crim.R. 11 has
greater probative value’ than a petitioner’s self-serving affidavit.” Brehm, supra, at
*1, quoting Moore, supra, at 753, citing Kapper, supra, at 38. In order to accept
Lewis’s affidavit, we must “believe that [her] statements at [the] plea hearing, set
forth in their entirety in the record, were false.” Brehm at *1.
{¶28} Third, beyond the Crim.R. 11 colloquy, there is additional evidence in
the record that does not support the affidavits of Peterson and Lewis. The PSI
clearly indicates that Lewis was aware that she would have to serve at least fifteen
years in prison. PSI. During an interview, she told the investigator that she knew
that her sentence was going to be fifteen years to life in prison and that she believed
she would be released on parole after she had served fifteen years. PSI. While she
said that she did not want this sentence, she still indicated that she understood her
sentence as communicated by the trial court at her change of plea hearing. PSI.
{¶29} In the end, Lewis still cannot substantiate her claim that she would not
have pled guilty if her attorney had correctly informed her of her parole eligibility
because she correctly related the terms of her sentence to the PSI investigator. PSI.
See State v. Davis, 11th Dist. Portage No. 2003-P-0077, 2004-Ohio-6684, ¶ 33
(holding that an affiant’s claims were not credible where they contradicted
statements made for the presentence investigation.). While her attorney’s
statements at the sentencing hearing indicate that he left the change of plea hearing
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with an incorrect understanding of the terms of his client’s sentence, Lewis’s
statements to the PSI investigator indicate that she left the change of plea hearing
with a correct understanding of the terms of her sentence. Since her affidavit
contradicts her own statements as recorded in the PSI, her affidavit is undermined—
not corroborated—by the evidence in the original record. Calhoun, supra, at 288.
{¶30} Similarly, even assuming that Peterson’s affidavit accurately states
that she had pressured Lewis to plead guilty on the basis of a misunderstanding of
the law, Lewis’s understanding of her sentence is the determinative issue in this
case. The record indicates that Lewis was aware of the terms of her sentence
regardless of whether her mother was operating under a misapprehension of the law.
While Peterson may have pressured her daughter to plead guilty, Lewis still stated
during her change of plea hearing that her decision was voluntary; that no one
threatened her to enter this plea; and that no one promised her anything to enter this
plea. Change of Plea Tr. 5, 7. She also signed a change of plea petition that stated
she was pleading guilty voluntarily; that no one had promised her a more lenient
sentence for so pleading; and that she was not threatened or coerced in this process.
Doc. 55.
Conclusion
{¶31} On direct appeal, Lewis previously raised the exact same issue that she
raises in her petition for postconviction relief. Lewis, supra, ¶ 6. The submission
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of these three affidavits does not affect our prior analysis in any way and confirms
that this issue “could * * * have been” “fairly * * * determined without resort to
evidence [dehors] the record * * *.” Cole, supra, at syllabus. Thus, the trial court
did not err in finding this claim was barred by res judicata.
{¶32} However, even if res judicata did not apply to her ineffective
assistance of counsel claim, Lewis still does not provide sufficient operable facts in
her petition that would provide grounds for relief. The affidavits still do not
establish that she would not have pled guilty in the absence of her attorney’s
deficient performance, which is why this Court found her prior appeal to be without
merit. Lewis, supra, at ¶ 6. The statements in the affidavits that address the issue
of prejudice contradict the evidence in the record contained in the Crim.R. 11
colloquy, the PSI, and the written change of plea form that she signed.
{¶33} After examining the evidence in the record, we conclude that the trial
court did not abuse its discretion in declining to hold an evidentiary hearing on
Lewis’s petition. Lewis’s sole assignment of error is overruled. Having found no
error prejudicial to the appellant in the particulars assigned and argued, the judgment
of the Logan County Court of Common Pleas is affirmed.
Judgment Affirmed
ZIMMERMAN, P.J. and SHAW, J., concur.
/hls
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