State v. Mitchell

[Cite as State v. Mitchell, 2021-Ohio-210.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109634
v. :
TERRANCE MITCHELL, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: January 28, 2021
Civil Appeal from the Cuyahoga County Common Pleas Court
Case No. CR-17-620376-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Brandon A. Piteo, Assistant Prosecuting
Attorney, for appellee.
Terrance Mitchell, pro se.
SEAN C. GALLAGHER, P.J.:
Terrance Mitchell appeals the denial of his petition for postconviction
relief. For the following reasons, we affirm.
Mitchell pleaded guilty to multiple counts of pandering sexually
oriented matter involving a minor, illegal use of a minor in nudity-oriented material
or performance, and possessing criminal tools. He was sentenced to a 12-year
aggregate term of imprisonment. State v. Mitchell, 8th Dist. Cuyahoga No. 107242,
2019-Ohio-1357, ¶ 1, 4. After his direct appeal, Mitchell filed an application for
reopening pursuant to App.R. 26(B), in part claiming that his appellate counsel was
ineffective for failing to advance a claim of ineffective assistance of trial counsel that
rendered Mitchell’s plea involuntary. State v. Mitchell, 8th Dist. Cuyahoga No.
107242, 2019-Ohio-4256, ¶ 5. The panel concluded that Mitchell’s guilty plea was
knowingly, intelligently, and voluntarily entered. Id. at ¶ 6. During that same time,
Mitchell also filed a Crim.R. 32.1 motion to withdraw his guilty plea, which was
denied on the basis that his guilty plea had been affirmed on appeal — an act
depriving the trial court of jurisdiction to grant Mitchell’s motion to withdraw his
guilty plea. State v. Mitchell, 8th Dist. Cuyahoga No. 109178, 2020-Ohio-3726, ¶ 7,
citing State v. Grant, 8th Dist. Cuyahoga No. 107499, 2019-Ohio-796, ¶ 14, and
State ex rel. Special Prosecutors v. Judges, Belmont Cty. Court of Common Pleas
Judges, 55 Ohio St.2d 94, 97-98, 378 N.E.2d 162 (1978).
In addition to those attempts to withdraw his guilty plea, Mitchell also
filed a timely petition for postconviction relief, in which he claims his trial counsel
was ineffective for providing the prosecutor with erroneous information regarding
Mitchell’s marriage and for failing to raise issues with the inventory sheets generated
after a search warrant was executed at Mitchell’s residence. Mitchell claims his
signature was forged and that a handwritten entry was added after he received an
unsigned copy. In light of those allegations, Mitchell claims his guilty plea was
invalid and his convictions should be vacated.
The law is well settled. “The postconviction relief process is a civil
collateral attack on a criminal judgment, in which the petitioner may present
constitutional issues to the court that would otherwise be impossible to review
because the evidence supporting the issues is not contained in the record of the
petitioner’s criminal conviction.” State v. Curry, 8th Dist. Cuyahoga No. 108088,
2019-Ohio-5338, ¶ 12, citing State v. Calhoun, 86 Ohio St.3d 279, 281, 1999-Ohio-
102, 714 N.E.2d 905, and State v. Carter, 10th Dist. Franklin No. 13AP-4, 2013-
Ohio-4058, ¶ 15. “[C]ourts are not required to hold a hearing in every postconviction
case.” (Citations omitted.) State ex rel. Madsen v. Jones, 106 Ohio St.3d 178, 2005-
Ohio-4381, 833 N.E.2d 291, ¶ 10. Before granting a hearing on a petition for
postconviction relief, “the court shall determine whether there are substantive
grounds for relief.” R.C. 2953.21(D). “In making such a determination, the court
shall consider, in addition to the petition, the supporting affidavits, and the
documentary evidence, all the files and records pertaining to the proceedings
against the petitioner * * *.” Id.A trial court’s ruling on a petition for postconviction relief is reviewed
for an abuse of discretion. Curry at ¶ 15, citing State v. Gondor, 112 Ohio St.3d 377,
2006-Ohio-6679, 860 N.E.2d 77, ¶ 45. “The trial court does not abuse its discretion
in dismissing a petition without a hearing if (1) the petitioner fails to set out
sufficient operative facts to establish substantive grounds for relief, or (2) the
operation of res judicata prohibits the claims made in the petition.” Id., citing State
v. Abdussatar, 8th Dist. Cuyahoga No. 92439, 2009-Ohio-5232, ¶ 15. In this case,
Mitchell failed to demonstrate sufficient operative facts to establish that his
counsel’s allegedly deficient performance negatively impacted Mitchell’s decision to
plead guilty. Although Mitchell’s challenge to the knowing, voluntary, and
intelligent nature of his guilty plea is likely precluded under the operation of res
judicata, in light of the earlier panel’s conclusion to the contrary, we need not
address this concern. Mitchell failed to set forth sufficient operative facts to
establish grounds for relief.
As it pertains to Mitchell’s alleged constitutional claims against his
guilty plea, “[a] defendant has the ultimate authority to decide whether to plead
guilty.” State v. Grate, Slip Opinion No. 2020-Ohio-5584, ¶ 121, citing Florida v.
Nixon, 543 U.S. 175, 187, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004). In order to
demonstrate ineffective assistance related to a decision to plead guilty, and thus rise
to the level of a constitutional violation for the purposes of the postconviction relief
statute, a defendant “must show that there is a reasonable probability that but for
counsel’s errors, he would not have pleaded guilty and would have insisted on going
to trial.” Id., citing State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855
N.E.2d 48, ¶ 89, citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d
203 (1985). The only two issues identified by Mitchell in the petition for
postconviction relief relate to an inventory of a search conducted at the time of
Mitchell’s arrest and certain statements about Mitchell’s marriage and other
background information presented to the prosecutor during the pretrial
proceedings.
With respect to the inventory sheets, Mitchell was aware of the issue
before he pleaded guilty. In fact, Mitchell expressly claims that he provided his trial
counsel with a copy of the disputed inventory sheets, and more to the point, “shared
the details” of the issues with the inventory sheets with trial counsel several times.
Mitchell has not explained how the inventory sheets impeded his knowingly,
voluntarily, or intelligently entering his guilty plea, nor has he provided any
indication that his trial counsel erroneously advised Mitchell of the consequences of
such an error. Even if, for the sake of discussion, we presume the inventory sheets
somehow impacted his decision to plead guilty, Mitchell was aware of the potential
issues with the inventory sheets and disclosed those issues to his trial counsel before
deciding to plead guilty.
It necessarily follows that even if we concluded that trial counsel’s
performance was deficient for failing to pursue arguments based on the inventory
sheets, Mitchell has not demonstrated that but for such an error, he would have
declined the plea deal and proceeded to trial. Mitchell was aware of the alleged
defect in the inventory sheets at the time he entered his guilty plea, shared his
concerns with trial counsel, and still decided against trial — a decision that solely
rests with the defendant. Grate at ¶ 121. Further, Mitchell has failed to explain how
any error with trial counsel’s presentation of Mitchell’s biographical information to
the prosecutor impacted Mitchell’s decision to plead guilty. App.R. 16(A)(7).
We are unable to conclude that the trial court erred in denying
Mitchell’s petition for postconviction relief without a hearing. Mitchell failed to
demonstrate any substantive ground for relief. Accordingly, we overrule the sole
assignment of error and affirm.
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.
_______________________________
SEAN C. GALLAGHER, PRESIDING JUDGE
LARRY A. JONES, SR., J., and
EILEEN A. GALLAGHER, J., CONCUR