State v. Miller

[Cite as State v. Miller, 2020-Ohio-871.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2019-G-0226
- vs - :
RAYMOND A. MILLER, :
Defendant-Appellant. :
Civil Appeal from the Geauga County Court of Common Pleas.
Case No. 2017 C 000001.
Judgment: Affirmed.
James R. Flaiz, Geauga County Prosecutor, and Nicholas A. Burling, Assistant
Prosecuting Attorney, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH
44024 (For Plaintiff-Appellee).
Raymond A. Miller, pro se, PID: A702-482, Northeast Ohio Correctional Center, 2240
Hubbard Road, Youngstown, OH 44505 (Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Raymond A. Miller, appeals from an entry of the Geauga
County Court of Common Pleas, dismissing his petition for postconviction relief without
a hearing. Miller asserts one assignment of error for our review:
{¶2} “The trial court abused its discretion in dismissing appellant’s post-
conviction relief petition pursuant to R.C. §2953.21 without a hearing where there were
sufficient operative facts alleged that would warrant a hearing.”
{¶3} R.C. 2953.21, Ohio’s postconviction relief statute, provides in pertinent
part:
(A)(1)(a) Any person who has been convicted of a criminal offense
* * * and 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. * * *
(D) The court shall consider a petition that is timely filed under
division (A)(2) of this section even if a direct appeal of the judgment
is pending. Before granting a hearing on a petition filed under
division (A) of this section, the court shall determine whether there
are substantive grounds for relief. 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[.] * * * If the
court dismisses the petition, it shall make and file findings of fact
and conclusions of law with respect to such dismissal. * * *
(F) Unless the petition and the files and records of the case show
the petitioner is not entitled to relief, the court shall proceed to a
prompt hearing on the issues even if a direct appeal of the case is
pending.
{¶4} Miller filed a pro se “Petition to Vacate or Set Aside Judgment of
Conviction or Sentence” pursuant to R.C. 2953.21 and two supplements, to which the
state of Ohio responded. Miller set forth two claims for relief:
[1.] Mr. Miller’s Conviction and Sentence are void and/or voidable.
Mr. Miller was denied his Constitutional Rights to Effective
Assistance of Counsel when defense counsel coerced Mr. Miller
into entering a guilty plea with the continuous threats of Miller’s
wife/co-defendant testifying against Miller. This is a violation of Mr.
Miller’s Sixth Amendment, U.S. Constitution; Section 10, Article 1,
Ohio Constitution, right to effective assistance of counsel.
[2.] Mr. Miller was denied his constitutional rights to effective
assistance of counsel as defense counsel failed to investigate
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and/or challenge the state’s case. Sixth Amendment, U.S.
Constitution; Section 10, Article 1, Ohio Constitution; Compulsory
Process and his Fifth and Fourteenth Amendment, U.S.
Constitution; Section 16, Article 1, Ohio Constitution; Due Process.
{¶5} The trial court initially denied the petition on January 10, 2019, concluding
it did not have jurisdiction to consider Miller’s petition and that his arguments were
barred by the doctrine of res judicata. This decision was affirmed in part and reversed
in part by this court in State v. Miller, 11th Dist. Geauga No. 2019-G-0189, 2019-Ohio-
2974. The trial court did not err in concluding that Miller’s second claim for relief was
barred by the doctrine of res judicata. Id. at ¶14. It was error, however, for the trial
court to apply the doctrine to Miller’s first claim for relief. Although Miller had raised the
argument in his direct appeal, this court had explicitly held it could not be addressed
therein as it relied on matters outside the trial court record. Id. at ¶15, citing State v.
Miller, 11th Dist. Geauga No. 2017-G-0136, 2018-Ohio-4379, ¶18.
{¶6} The matter was remanded for the trial court to consider whether Miller’s
petition set forth substantive grounds for relief that would warrant a hearing on his first
claim for relief, consistent with R.C. 2953.21(D) and (F). Id. at ¶18. In his first claim for
relief, Miller alleged he received ineffective assistance of counsel “when defense
counsel coerced Mr. Miller into entering a guilty plea with the continuous threats of
Miller’s wife/co-defendant testifying against Miller.”
{¶7} On remand, the trial court again dismissed Miller’s petition without a
hearing on September 3, 2019. The trial court held that Miller’s petition did not set forth
substantive grounds for relief that would warrant a hearing based on the following
findings of fact and conclusions of law:
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1. Defendant alleges that his defense counsel coerced him into
entering a guilty plea with threats of Defendant’s wife/co-
defendant testifying against Defendant.
2. On Page 6 of Defendant’s Petition to Vacate or Set Aside
Judgment of Conviction or Sentence, Defendant states “Miller
knew of the spousal privilege protecting his wife from being
forced to testify against him.”
3. While Defendant’s case was pending, prior to Defendant’s plea,
this Court granted Defendant the opportunity to communicate
with his wife by mail, and permitted Defendant and his wife to
have an “in person” conversation at the courthouse following a
pretrial. On Page 5 of Defendant’s Petition to Vacate or Set
Aside Judgment of Conviction or Sentence, Defendant states
that during these visits and through the correspondence, it was
made clear that Mrs. Miller was not testifying against her
husband.
4. According to Defendant’s affidavit, prior to Defendant’s plea,
Defendant’s attorney apologized to Defendant “…for saying my
wife is testifying. He stated he was wrong. She is in fact not
testifying.”
5. In the courtroom, during the change of plea hearing, before the
Court accepted Defendant’s change of plea, the Court and
Defendant engaged in the following colloquy:
The Court: Thank you. All right. I may have lost track of
where I left off. But has your attorney
answered all of your questions?
Mr. Miller: Yes, ma’am
The Court: And are you satisfied that you have been well
represented?
Mr. Miller: Yes, Ma’am
***
The Court: Besides what’s contained in this agreement,
has anyone made any threats, promises or
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other inducements to you in order to get you to
enter into this agreement?
Mr. Miller: No, ma’am.
***
The Court: Okay. Do you have any questions, or do you
need more time to talk to your attorney at this
point?
Mr. Miller: No, ma’am.
Plea T. pp. 6-7.
6. Any error committed by Defendant’s attorney in stating that
Defendant’s wife was going to testify against Defendant at trial
was corrected when Defendant’s attorney apologized and stated
that she was not testifying. This was corrected, by Defendant’s
own account, prior to the change of plea hearing.
7. There was no coercion at the time Defendant changed his plea.
8. Defendant’s counsel’s mistake in informing Defendant that his
wife was going to testify against him, then apologizing to
Defendant and telling him that she was not going to testify prior
to Defendant’s change of plea hearing, does not fall below an
objective standard of reasonableness as required by Strickland
v. Washington, 466 U.S. 668 (1984).
9. Further, Defendant readily admits that his wife told him both in
person and in writing that she was not going to testify against
him, and his attorney corrected his error and confirmed that
Defendant’s wife was not going to testify against him prior to
Defendant changing his plea. Given that Defendant voluntarily
changed his plea after knowing from all sources that his wife
was not going to testify against him, there is no evidence that,
but for counsel’s error “… the result of the proceeding would
have been different.” Strickland at 694.
10. Defendant was not coerced into entering a guilty plea based on
the threat that his wife would testify against him.
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11. Defendant’s post-conviction petition does not set forth
substantive grounds for relief that would warrant a hearing,
consistent with R.C. 2953.21(D) and (F).
12. Defendant’s petition for post-trial relief is dismissed.
{¶8} Our standard of review is whether the trial court abused its discretion in
dismissing the petition without a hearing. State v. Miller, 11th Dist. Lake No. 2018-L-
055, 2018-Ohio-5192, ¶12-13, citing State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-
6679, ¶51, citing State v. Calhoun, 86 Ohio St.3d 279 (1999), paragraph two of the
syllabus.
{¶9} “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. Jackson, 64
Ohio St.2d 107 (1980), syllabus. “For purposes of determining whether there are
substantive grounds for postconviction relief that would warrant a hearing, it is generally
accepted that affidavits presented in support of the petition should be accepted as true.”
State v. Pierce, 127 Ohio App.3d 578, 586 (11th Dist.1998). The “statute does not
expressly mandate a hearing for every post-conviction relief petition and, therefore, a
hearing is not automatically required.” Jackson, supra, at 110.
{¶10} Upon review, we cannot conclude the trial court abused its discretion by
not holding a hearing on Miller’s petition. Even accepting the affidavits as true, the
evidentiary documents submitted by Miller do not contain sufficient operative facts to
demonstrate ineffective assistance of counsel under the two-pronged test set forth in
Strickland v. Washington, 466 U.S. 668 (1984). In other words, Miller has not alleged
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sufficient operative facts to demonstrate that he would not have pled guilty but for
defense counsel’s initial incorrect statement and subsequent correction/apology—all of
which occurred prior to Miller’s plea of guilty and all of which was independently known
to Miller as a result of conversations with his wife.
{¶11} Miller’s sole assignment of error is without merit.
{¶12} The judgment of the Geauga County Court of Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.
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