State v. Thomas

[Cite as State v. Thomas, 2014-Ohio-1512.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99972
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
SHERMAN THOMAS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-07-498296-B, CR-07-502143-A, CR-08-510295-A
and CR-09-519703-C
BEFORE: Keough, J., Boyle, A.J., and Blackmon, J.
RELEASED AND JOURNALIZED: April 10, 2014
APPELLANT
Sherman Thomas, pro se
Inmate No. A564455
P.O. Box 8107
Mansfield, Ohio 44905
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Mary H. McGrath
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:
{¶1} In 2009, defendant-appellant, Sherman Thomas, entered guilty pleas in Case
Nos. CR-08-510295-A, CR-07-502143-A, CR-07-498296-B, and CR-09-519703-C. As
a result of these pleas, Thomas was sentenced to ten years in prison. Thomas timely filed
notices of appeal in each case, which were consolidated. However, this court sua sponte
dismissed the appeal for failure to file an appellate brief pursuant to App.R. 18(C). State
v. Thomas, 8th Dist. Cuyahoga No. 93351
{¶2} In 2013, Thomas moved the trial court for postconviction relief, or in the
alternative, to allow him to withdraw his guilty pleas in each of the cases. The trial court
summarily denied each motion.
{¶3} Thomas now appeals these decisions, raising four assignments of error, which
will be addressed together where appropriate.
I. Postconviction Petition
{¶4} In his first and third assignments of error, Thomas contends that the trial
court improperly dismissed his postconviction petition without conducting an evidentiary
hearing or making findings of fact and conclusions of law.
{¶5} R.C. 2953.21 governs postconviction relief petitions. R.C. 2953.21(C) and
(G) require a trial court to make and file findings of fact and conclusions of law setting
forth its findings on the issues presented and a substantive basis for its disposition of each
claim for relief advanced in the petition. State v. Kinstle, 3d Dist. Allen No. 1-12-32,
2013-Ohio-850, ¶ 10. “‘Findings of fact and conclusions of law are mandatory under
R.C. 2953.21 if the trial court dismisses the petition.’” State ex rel. Carrion v. Harris, 40
Ohio St.3d 19, 530 N.E.2d 1330 (1988), quoting State v. Lester, 41 Ohio St.2d 51, 322
N.E.2d 656 (1975), paragraph two of the syllabus.
{¶6} A trial court need not issue findings of fact and conclusions of law or conduct
an evidentiary hearing, however, when it dismisses an untimely postconviction relief
petition because the time limit for filing a motion for postconviction relief is
jurisdictional. State v. Dilley, 8th Dist. Cuyahoga No. 99680, 2013-Ohio-4480, ¶ 9; State
v. Johns, 8th Dist. Cuyahoga No. 93226, 2010-Ohio-162, ¶ 8. Under R.C.
2953.21(A)(2), a petition must be filed no later than 180 days after the date on which the
trial transcript is filed in the court of appeals in the direct appeal of the conviction, or if
no appeal is taken, no later than 180 days after the expiration of time for filing the appeal.
Here, the trial transcript was filed in the court of appeals in Thomas’s direct appeal on
July 1, 2009. He filed his postconviction petition in February 2013, over three years
after the trial transcript was filed. Accordingly, Thomas’s petition was untimely.
{¶7} However, under R.C. 2953.23, the trial court may entertain an untimely
petition for postconviction relief if the petition meets two conditions. First, the petitioner
must demonstrate either that he was unavoidably prevented from discovering the facts on
which he relies in the petition or that the United States Supreme Court has, since his last
petition, recognized a new federal or state right that applies retroactively to the petitioner.
R.C. 2953.23(A)(1)(a). Second, the petitioner must show by clear and convincing
evidence that a reasonable factfinder would not have found him guilty but for
constitutional error at trial. R.C. 2953.23(A)(1)(b).
{¶8} Unless the defendant makes the showings required by R.C. 2953.23(A), the
trial court lacks jurisdiction to consider either an untimely or a successive petition for
postconviction relief. State v. Carter, 2d Dist. Clark No. 03CA-11, 2003-Ohio-4838, ¶
13, citing State v. Beuke, 130 Ohio App.3d 633, 720 N.E.2d 962 (1st Dist.1998).
{¶9} In his petition for postconviction relief, Thomas did not allege any new
factual evidence in his case. Rather, he contends that his petition meets the exceptions
set forth in R.C. 2953.23 based on the United States Supreme Court decisions in Lafler v.
Cooper, 566 U.S. ___, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), and Missouri v. Frye,
566 U.S. ___, 132 S.Ct. 1399, 182 L.E.2d 379 (2012). Thomas argues that Lafler and
Frye collectively recognize a new retroactive right with respect to the Sixth Amendment
right to effective assistance of counsel during the plea bargaining process.
{¶10} However, contrary to the arguments raised in Thomas’s petition, this court
has held that Lafler and Frye do not create a new retroactive right. State v. Marsh, 8th
Dist. Cuyahoga No. 99219, 2013-Ohio-3147, ¶ 11, citing State v. Hicks, 8th Dist.
Cuyahoga No. 99119, 2013-Ohio-1904, ¶ 14. Thus, Thomas has failed to demonstrate
that he meets one of the exceptions to the timely filing requirement set forth in R.C.
2953.23(A)(1). Accordingly, the trial court properly denied Thomas’s request for relief
without holding a hearing or issuing findings of fact and conclusions of law because it
was without jurisdiction to review the untimely petition. See Masters at ¶ 11.
{¶11} Thomas’s first and third assignments of error are overruled.
II. Motion to Withdraw Guilty Plea — Effective Assistance of Counsel
{¶12} In this fourth assignment of error, Thomas contends that the trial court
erred in summarily denying his request to withdraw his guilty plea.
{¶13} Crim.R. 32.1 provides that “[a] motion to withdraw a plea of guilty or no
contest may be made only before sentence is imposed; but to correct manifest injustice the
court after sentence may set aside the judgment of conviction and permit the defendant to
withdraw his or her plea.”
{¶14} A defendant who attempts to withdraw a guilty plea after sentence has
been imposed bears the burden of demonstrating a manifest injustice. State v. Smith, 49
Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus. This court has
explained:
[a] manifest injustice is defined as a “clear or openly unjust act,
extraordinary and fundamental flaw in the plea proceeding.” Again,
“manifest injustice” comprehends a fundamental flaw in the path of justice
so extraordinary that the defendant could not have sought redress from the
resulting prejudice through another form of application reasonably available
to him or her.
(Citations omitted.) State v. Sneed, 8th Dist. Cuyahoga No. 80902, 2002-Ohio-6502, ¶
13. Further, “[a] trial court is not required to hold an evidentiary hearing on a
post-sentence motion to withdraw a guilty plea, except when the facts, as alleged by the
defendant, indicate a manifest injustice would occur if the plea was allowed to stand.”
State v. Britford, 10th Dist. Franklin No. 11AP-646, 2012-Ohio-1966, ¶ 12.
{¶15} We therefore review a trial court’s refusal to allow a postsentence motion to
withdraw a guilty plea for an abuse of discretion. State v. Xie, 62 Ohio St.3d 521, 527,
584 N.E.2d 715 (1992).
{¶16} In this case, Thomas moved to withdraw his plea postsentence on the basis
that he received ineffective assistance of counsel during the plea proceedings, which
Thomas raises as his second assignment of error. In his motion, he contends that he was
denied effective assistance of counsel because his trial counsel (1) failed to communicate
with him prior to the plea hearing, and (2) failed to conduct pretrial discovery.
{¶17} To establish ineffective assistance of counsel, a defendant must
demonstrate that counsel’s performance fell below an objective standard of reasonable
representation and that he was prejudiced by that performance. State v. Drummond, 111
Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 205, citing Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. (1984). Prejudice is
established when the defendant demonstrates “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland at 694.
{¶18} Notwithstanding that Thomas could have raised this issue in a direct appeal,
we find that he was not denied effective assistance of counsel. The record before this
court demonstrates that although Thomas may have been confused over the status of his
cases, he and his counsel met prior to the start of the court proceedings and discussed
Thomas’s cases. After a lengthy discussion on the record by the parties regarding
defense counsel’s investigation and preparation of the case, Thomas remarked:
THE DEFENDANT: No. I understand. But I just — like I was saying
before, I didn’t know. But now, after hearing this, I know he really been
doing everything he said he was doing. And I just want to apologize to him,
because I say he really doing what he supposed to be doing.
{¶19} After Thomas expressed his concerns about counsel, the trial court gave
Thomas and defense counsel additional time to discuss the case. Following a recess and
before any plea was stated on the record, the following exchange took place:
THE COURT: Do you feel like you have a satisfactory understanding of
what’s happening now?
THE DEFENDANT: Yes.
{¶20} Thereafter, the prosecutor stated on the record the plea agreement and the
trial court engaged in the following colloquy with Thomas:
THE COURT: * * * Mr. Thomas, you have had an opportunity to speak
with your attorney to your satisfaction?
THE DEFENDANT: Yes.
***
THE COURT: Okay. Are you satisfied with the job that [defense counsel]
has done for you?
THE DEFENDANT: Yes.
{¶21} The trial court advised Thomas of his Crim.R. 11 rights, and Thomas
entered guilty pleas to the counts and specifications stated by the court and pursuant to the
plea agreement previously indicated. The record demonstrates that his defense counsel
negotiated a plea with the state involving four different cases, each containing multiple
offenses and specifications, some of which carried mandatory prison terms. At no time
during the actual plea proceeding did Thomas indicate that he did not understand the
nature of the plea agreement, his rights he was waiving, or that he was confused about the
proceedings. Accordingly, Thomas has failed to demonstrate how counsel’s
performance was prejudicial.
{¶22} Finally, Thomas contends he was denied effective assistance of counsel
because his trial counsel received a subsequent remedial suspension from the practice of
law. The mere fact that his trial counsel was suspended based on an unrelated matter that
occurred two years after Thomas entered into his guilty pleas, is irrelevant and
insufficient to withstand his burden of proving counsel’s representation was deficient in
Thomas’s case.
{¶23} Because we find Thomas was not denied effective assistance of counsel, the
trial court did not abuse its discretion in denying his postsentence motion to withdraw his
guilty plea. Accordingly, his second and fourth assignments of error are overruled.
{¶24} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
MARY J. BOYLE, A.J., and
PATRICIA ANN BLACKMON, J., CONCUR