State v. Henry

[Cite as State v. Henry, 2017-Ohio-7427.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2016-CA-78
:
v. : Trial Court Case No. 1999-CR-584
:
ANJUAN C. HENRY : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 1st day of September, 2017.
...........
ANDREW P. PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, 50 East Columbia Street, Fourth Floor, Springfield, Ohio
45501
Attorney for Plaintiff-Appellee
ANJUAN C. HENRY, Inmate No. 401-154, London Correctional Institution, P.O. Box 69,
London, Ohio 43140
Defendant-Appellant-Pro Se
.............
WELBAUM, J.
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{¶ 1} Defendant-appellant, Anjuan C. Henry, appeals from the decision of the Clark
County Court of Common Pleas denying his pro se petition for post-conviction relief
without a hearing. In support of his appeal, Henry claims that the trial court erred in
construing his petition as a motion to withdraw a plea. For the reasons outlined below,
the judgment of the trial court will be reversed and remanded for further proceedings
consistent with this Opinion.
I. Facts and Course of Proceedings
{¶ 2} On November 1, 1999, the Clark County Grand Jury indicted Henry on two
counts of knowingly selling or offering to sell crack cocaine in an amount greater than five
grams but less than ten grams, in violation of R.C. 2925.03. Dkt. 1. These two counts
of drug trafficking were brought against Henry in Clark County Common Pleas Case No.
1999-CR-584. Dkt. 1. Henry previously was indicted in Clark County Common Pleas
Case No. 1999-CR-296 on one count of possession of crack cocaine in excess of one
hundred grams. On February 28, 2000, the trial court consolidated these two cases for
trial. Dkt. 9.
{¶ 3} The jury returned guilty verdicts on both counts of drug trafficking and one
count of possession of crack cocaine with a major drug specification. Dkt. 15-16, 25.
Henry was sentenced on September 22, 2000. Dkt. 25. On appeal, we reversed
Henry’s convictions and remanded the case for further proceedings consistent with our
Opinion. Dkt. 32; State v. Henry, 2d Dist. Clark No. 2000-CA-80, 2002 WL 125717 (Feb.
1, 2002).
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{¶ 4} After we remanded the case, the two cases were severed. In June 2003,
Henry was re-tried in Case No. 99-CR-296. Henry was found guilty of the possession
charge and was sentenced to prison. On November 12, 2003, after his trial and
conviction for possession in Case No. 99-CR-296, Henry pled no contest to the two drug
trafficking charges in Case No. 99-CR-584. Dkt. 40. Henry and the State agreed to a
prison sentence of five years on each of the two drug trafficking counts, to be served
consecutive to each other but concurrent with the prison sentence in 99-CR-296.
Apparently, the conviction and sentence in Case No. 99-CR-584 were not journalized until
January 7, 2011. Dkt. 52. The trial court sentenced Henry to an agreed prison
sentence of five years on each count, to run consecutive to each other and concurrent
with the prison sentence in Case No. 99-CR-296.
{¶ 5} On April 5, 2016, Henry filed a document entitled “2953.21 Delayed petition
to vacate no contest plea and set aside judgment of conviction” in Case No. 99-CR-584.
Dkt. 58. The first page of his petition stated “Petitioner, Anjuan Henry, petitions this court
for post conviction relief pursuant to R.C. 2953.21 for the reasons stated in the following
statement of facts supporting claim.” Henry attached two affidavits to this petition. His
March 21, 2016 affidavit stated, in pertinent part:
In Feb of 2016, my ex-fiancée and children’s mother, Erica Bibbs, did
inform me that leading up to and during my June 2003 jury trial for
possession on [sic] cocaine, she was having an affair with my trial attorney.
She was reluctant to provide the affidavit attached to the motion for
leave because she said it would make her “look bad” and also inquired as
to whether his attorney could “get in trouble” if this came out.
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{¶ 6} The second affidavit was a March 14, 2016 affidavit of Erica Bibbs. The
affidavit stated:
I Erica Bibbs, aver and attest to the following . . . before and during
my ex fiancé and my children’s father, (Anjuan Henry), June 2003 jury trial,
I was engaged in a romantic relationship with his attorney.
Dkt. 58
{¶ 7} On April 20, 2016, Henry filed a motion for summary judgment on his petition.
Dkt. 59. On May 23, 2016, Henry filed a “Motion For Leave To Amend Petition To Include
Supplemental Affadavit.” Dkt. 60. Attached to this motion was Henry’s affidavit dated
May 16, 2016. The affidavit stated, in pertinent part:
In April of 2013, my ex-fiancée and I began communicating on an
intimate level again.
We both came to an agreement to try to repair our relationship.
We’ve been successful in that endeavour [sic] for the past few years.
In Feb of 2016, my ex-fiancée Erica Bibbs, told me that, years ago
she did something that she regrets, and that she was tired of living with the
guilt of it. That’s when, for the first time, she revealed the affair she had
with my trial attorney while he was representing me.
{¶ 8} On August 8, 2016, Henry filed a “Motion To Amend Petition To Include
Supplemental Argument.” Dkt. 61. Henry asked the trial court to consider the additional
authority of Disciplinary Counsel v. Owen, 142 Ohio St.3d 323, 2014-Ohio-4597, 30
N.E.3d 910. Dkt. 61.
{¶ 9} The trial court denied Henry’s petition on November 8, 2016, stating (Dkt.
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62):
This matter is before the Court on the pro se motion of the defendant
for leave to file a delayed petition to vacate a no contest pleas and set aside
the judgment. Upon review of the arguments and the record, the Court
finds the motion is not well taken and the same is DENIED.
{¶ 10} Henry appealed from the trial court’s November 8, 2016 decision. Dkt. 63.
In his appeal, Henry filed a Motion to Stay and Remand the cause because the trial court
failed to issue findings of fact and conclusions of law in denying his petition for post-
conviction relief. In his motion, Henry referenced a writ of mandamus he had filed to
require the trial court to issue the findings of fact and conclusions of law. On January
10, 2017, we requested that the parties file briefs addressing whether Henry’s April 5,
2016 filing was a request for post-conviction relief or some other post-sentence motion
and, if the filing was a petition for post-conviction relief, whether any exceptions apply to
the requirement that the trial court issue findings of fact and conclusions of law when
denying the petition.
{¶ 11} On March 2, 2017, we issued an Order stating, in pertinent part:
Accordingly, Henry’s motion to stay and remand is SUSTAINED.
This matter is STAYED until further order of court. The case is
REMANDED. The trial court is ORDERED to take one of the following two
actions within 20 days of this Order: 1) issue findings of fact and
conclusions of law on Henry’s April 5, 2016 “2953.21 Delayed Petition to
vacate no contest plea and set aside judgment of conviction;” or 2) issue an
entry stating the reason(s) that findings of fact and conclusions of law are
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not required on Henry’s April 5 filing.
{¶ 12} The trial court issued an Entry in response to our March 2, 2017 Order.
Dkt. 65. In its Entry, the trial court stated, in pertinent part:
This matter had been before the Court on the pro se motion of the
defendant for leave to file a delayed petition to vacate a [sic] no contest
pleas and set aside the judgment. This is a motion to withdraw a plea, not
a petition for post conviction relief. A ruling on a motion to withdraw a plea
does not require the court to file a finding of facts and conclusion of law.
***
In ruling on a motion to withdraw a plea, the court is not required to
file a finding of facts. However, in reviewing the court’s records, the court
found that the defendant was represented by a competent and experienced
trial attorney. The defendant indicated in his written plea that he was
satisfied with the advice and representation his attorney had given him, that
he understood everything in the plea including the constitutional rights he
was waiving by entering into the plea, that no threats or promises, other
than what had been placed on the record, had been made to the defendant
to get him to enter into the plea, and that he was giving up those rights by
entering the plea.
In the defendant’s motion and supplements to the motion, the
defendant claimed ineffective assistance of counsel. The main basis is
that his attorney was engaged in a sexual relationship with the defendant’s
girl friend at the time he was representing the defendant. Further, the
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defendant was not aware of that relationship for a number of years. The
defendant attempts to substantiates [sic] this claim with a self-serving
affidavit.
Any other grounds for the motion should have been raised in the
defendant’s unsuccessful appeal, and would now be barred by res judicata.
Upon review of the arguments and the record, the Court finds the
motion is not well taken and the same is DENIED.
{¶ 13} Henry filed a new notice of appeal from the trial court’s March 2, 2017 Entry.
II. The Trial Court Erred In Construing Henry’s Petition For Post-Conviction Relief
As A Motion To Withdraw A Plea
{¶ 14} Henry’s sole assignment of error states:
THE TRIAL COURT VIOLATED APPELLANT’S 14TH
AMENDMENT RIGHT TO EQUAL PROTECTION OF THE LAW, WHEN IT
CLASSIFIED APPELLANT’S 2953.21 PETITION AS A CRIMINAL RULE
32.1 MOTION, AND FAILED TO ISSUE FINDINGS OF FACTS AND
CONCLUSIONS OF LAW.
{¶ 15} Henry contends that his April 5, 2016 filing was a petition for post-conviction
relief pursuant to R.C. 2953.21. According to Henry, the trial court improperly found that
this petition was a motion to withdraw a plea and, as a result, the trial court failed to make
the required findings of fact and conclusions of law.
{¶ 16} In his April 5, 2016 filing, Henry relied on affidavits that were outside the
record and specifically requested relief under R.C. 2953.21. Further, he did not argue
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for a withdrawal of his plea or cite any legal authority that indicated a motion to withdraw
a plea. In addition, he stated that he had met the requirements to file an untimely petition
pursuant to R.C. 2953.23(A)(1)(a), which would have been unnecessary if he was instead
filing a motion to withdraw a plea. We have previously held that a post-conviction
contention of ineffective assistance of counsel accompanied by an affidavit outside the
record “is a textbook example of a R.C. 2953.21 post-conviction relief argument.”
(Citations omitted.) State v. Isa, 2d Dist. Champaign No. 2012-CA-44, 2013-Ohio-3382,
¶ 6. Under the particular facts before us, we conclude that the trial court should have
reviewed Henry’s April 5, 2016 filing as a petition for post-conviction relief as opposed to
dismissing the petition solely based on the failure to meet the requirements to withdraw
a plea pursuant to Crim.R. 32.1. State v. Clark, 2d Dist. Darke No. 2015-CA-26, 2017-
Ohio-120, ¶ 16-17; State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, 773 N.E.2d 522,
¶ 14 (“Postsentence motions to withdraw guilty or no contest pleas and postconviction
relief petitions exist independently.”).
{¶ 17} Although the trial court erroneously construed Henry’s April 5, 2016 filing as
a motion to withdraw a plea rather than a petition for post-conviction relief, our review
does not end here. Rather, if the trial court provided sufficient findings of fact and
conclusions of law, although not labeled as such, to support the dismissal of the petition
without a hearing under R.C. 2953.21, then Henry’s assignment of error should be
overruled. Sufficient findings of fact and conclusions of law are those that are
comprehensive and pertinent to the issues presented, demonstrate the basis for the
decision by the trial court, and are supported by the evidence. State v. Calhoun, 86 Ohio
St.3d 279, 714 N.E.2d 905 (1999), paragraph three of the syllabus.
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{¶ 18} Although the trial court stated that Henry’s filing was not a petition for post-
conviction relief and therefore no findings of fact and conclusions of law were required,
the trial court did provide some reasoning for its denial of Henry’s requested relief.
Specifically, the trial court stated, in pertinent part (Dkt. 65):
In ruling on a motion to withdraw a plea, the court is not required to
file a finding of facts. However, in reviewing the court’s records, the court
found that the defendant was represented by a competent and experienced
trial attorney. The defendant indicated in his written plea that he was
satisfied with the advice and representation his attorney had given him, that
he understood everything in the plea including the constitutional rights he
was waiving by entering into the plea, that no threats or promises, other
than what had been placed on the record, had been made to the defendant
to get him to enter into the plea, and that he was giving up those rights by
entering the plea.
In the defendant’s motion and supplements to the motion, the
defendant claimed ineffective assistance of counsel. The main basis is
that his attorney was engaged in a sexual relationship with the defendant’s
girl friend at the time he was representing the defendant. Further, the
defendant was not aware of that relationship for a number of years. The
defendant attempts to substantiates [sic] this claim with a self-serving
affidavit.
{¶ 19} The trial court’s analysis of whether his plea was knowing and voluntary,
while relevant to a motion to withdraw a plea, is less relevant when considering Henry’s
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filing as a petition for post-conviction relief based on ineffective assistance of counsel
arising out of a conflict of interest created when Henry’s trial counsel allegedly was having
an affair with Henry’s girlfriend or fiancé during his representation of Henry.
{¶ 20} The trial court also noted that Henry tried to substantiate his claim of
ineffective assistance of counsel “with a self-serving affidavit.” Id. We recently
explained the analysis a trial court may undergo when faced with a petition for post-
conviction relief that relies on allegedly self-serving affidavits:
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.
Kapper, 5 Ohio St.3d 36, 38, 448 N.E.2d 823 (1983)]; State v. Perkins, 2d
Dist. Montgomery No. 24397, 2011-Ohio-5070, ¶ 15. “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.” State v. Padgett,
2d Dist. Montgomery No. 17658, 1999 WL 1127398, * 3 (Dec. 10, 1999),
citing Calhoun at 284, 714 N.E.2d 905. Nevertheless, “the trial court may,
under appropriate circumstances in postconviction relief proceedings, deem
affidavit testimony to lack credibility without first observing or examining the
affiant.” Calhoun at 284, 714 N.E.2d 905.
Clark at ¶ 20.
{¶ 21} In assessing the credibility of affidavits, the Supreme Court has provided
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the following relevant factors to be considered:
(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 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.
Calhoun, 86 Ohio St.3d at 285, citing State v. Moore, 99 Ohio App.3d 748, 754-756, 651
N.E.2d 1319 (1st Dist.1994).
{¶ 22} “[O]ne or more of these or other factors may be sufficient to justify the
conclusion that an affidavit asserting information outside the record lacks credibility.”
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.{¶ 23} Arguably, one or more of the Calhoun factors may apply to discount the
credibility of both of Henry’s two supporting affidavits. However, the trial court failed to
provide findings of fact and conclusions of law to explain why either or both of the
affidavits were self-serving. Further, the trial court referred to affidavit in the singular,
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raising the implication that the trial court was speaking solely about Henry’s affidavit rather
than the Bibbs affidavit, or vice versa. In short, the trial court failed to provide sufficient
findings of fact and conclusions of law. Calhoun.
{¶ 24} As we noted in Clark, it is not this court’s place to judge the credibility of the
affidavits or to rule on Henry’s petition. Clark at ¶ 23. Rather, “the decision to grant or
dismiss the petition with or without a hearing falls within the sound discretion of the trial
court.” Id., citing State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77,
¶ 45, 58. On remand, the trial court will have an opportunity to exercise this discretion
when it considers Henry’s April 5, 2016 filing as a petition for post-conviction relief.
Henry’s sole assignment of error is sustained.
III. Conclusion
{¶ 25} The judgment of the trial court is reversed and the cause is remanded for
the trial court to review Henry’s petition for post-conviction relief under R.C. 2953.21 and
to issue a ruling on the petition in accordance with Crim.R. 35.
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FROELICH, J. and TUCKER, J., concur.
Copies mailed to:
Andrew P. Pickering
Anjuan C. Henry
Hon. Richard J. O’Neill