State v. Burton

[Cite as State v. Burton, 2021-Ohio-1008.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2020-L-098
- vs - :
XAVIER L. BURTON, :
Defendant-Appellant. :
Civil Appeal from the Lake County Court of Common Pleas, Case No. 2018 CR 001249.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, Ohio
44077 (For Plaintiff-Appellee).
Xavier L. Burton, pro se, A763-613, Lake Erie Correctional Institution, 501 Thompson
Road, P.O. Box 8000, Conneaut, Ohio 44030 (Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Xavier L. Burton, appeals the trial court’s judgment dismissing
his petition for postconviction relief. We affirm.
{¶2} In 2018, Burton was indicted on four counts of aggravated trafficking in
drugs, with attendant forfeiture specifications, and one count of possessing criminal tools.
Ultimately, Burton entered a guilty plea to one count of aggravated trafficking in drugs, in
violation of R.C. 2925.03(A)(1), a felony of the second degree, and agreed to forfeit all
items referenced in the indictment. The court entered a nolle prosequi on the remaining
counts and sentenced Burton to five years in prison. Burton appealed his sentence, and
this court affirmed. State v. Burton, 11th Dist. Lake No. 2019-L-087, 2020-Ohio-440.
{¶3} In 2020, Burton filed a motion for postconviction relief, arguing ineffective
assistance of counsel based upon: (1) defense counsel mistakenly informing Burton that
he was pleading to a felony of the third degree carrying a potential sentence of no more
than three years in prison, and (2) defense counsel failing to adequately investigate the
case or prepare for trial.
{¶4} The trial court concluded that Burton failed to produce sufficient credible
evidence warranting relief and dismissed the petition. Burton appeals, assigning two
errors:
{¶5} “[1.] The trial court abused its discretion in its application of the doctrine of
res judicata to Burton’s timely filed petition for post-conviction relief pursuant to [R.C.
2953.21] thus violating Burton’s rights under the fourth, fifth, sixth, and fourteenth
amendments to the United States Constitution and Article I, Sections 1 and 14 of the Ohio
Constitution.”
{¶6} “[2.] The trial court erred in denying Burton’s post-conviction relief petition
where he presented sufficient evidence dehors the record to merit an evidentiary hearing.”
{¶7} With respect to Burton’s first assigned error, under the doctrine of res
judicata, “‘a defendant who was represented by counsel is barred from raising an issue
in a petition for postconviction relief if the defendant raised or could have raised the issue
at trial or on direct appeal.’” State v. Jackson, 11th Dist. Lake No. 2019-L-042, 2019-
Ohio-4735, ¶ 15, quoting State v. Adams, 11th Dist. Trumbull No. 2003-T-0064, 2005-
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Ohio-348, ¶ 38, citing State v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233 (1996),
syllabus.
{¶8} Burton’s argument in support of his first assigned error is misplaced, as the
trial court did not apply res judicata but, instead, dismissed the petition because Burton
did not produce sufficient credible evidence warranting relief. Accordingly, Burton’s first
assigned error lacks merit.
{¶9} With respect to his second assigned error, Burton argues that the trial court
erred in failing to hold a hearing on his petition.
{¶10} We apply an abuse of discretion standard to our review of a trial court’s
decision to dismiss a petition for postconviction relief without a hearing. Jackson, 2019-
Ohio-4735, at ¶ 11. “‘[T]he term “abuse of discretion” is one of art, connoting judgment
exercised by a court, which does not comport with reason or the record.’” Ivancic v. Enos,
11th Dist. Lake No. 2011-L-050, 2012-Ohio-3639, 978 N.E.2d 927, ¶ 70, quoting State v.
Underwood, 11th Dist. No. 2008-L-113, 2009-Ohio-2089, ¶ 30.
{¶11} The postconviction relief statute, R.C. 2953.21, provides, “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 postconviction
petition “asking the court to vacate or set aside the judgment or sentence * * *.” R.C.
2953.21(A)(1)(a).
{¶12} Before the trial court grants a hearing on a postconviction petition claiming
ineffective assistance of counsel, “‘the petitioner bears the initial burden to submit
evidentiary documents containing sufficient operative facts to demonstrate the lack of
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competent counsel and that the defense was prejudiced by counsel’s ineffectiveness.’”
(Emphasis sic.) State v. Calhoun, 86 Ohio St.3d 279, 282, 714 N.E.2d 905 (1999),
quoting State v. Jackson, 64 Ohio St.2d 107, 413 N.E.2d 819, 820 (1980), syllabus.
{¶13} In Calhoun, the Ohio Supreme Court held:
1. In reviewing a petition for postconviction relief filed pursuant to R.C.
2953.21, a trial court should give due deference to affidavits sworn to under
oath and filed in support of the petition, but 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.
2. Pursuant to R.C. 2953.21(C), a trial court properly denies a defendant’s
petition for postconviction relief without holding an evidentiary hearing
where the petition, the supporting affidavits, the documentary evidence, the
files, and the records do not demonstrate that petitioner set forth sufficient
operative facts to establish substantive grounds for relief.
Id. at syllabus.
{¶14} In determining whether an affiant’s testimony lacks credibility, the trial court
should consider “all relevant factors[,]” including:
(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. (Citation omitted.)
Id. at 285.
{¶15} Here, Burton attached to his petition affidavits from himself, his mother, and
the mother of his child. Burton maintains that defense counsel met with Burton and some
of his family members prior to a hearing. According to Burton, the attorney advised him
that, if he would plead guilty to one felony of the third degree, then he would likely be
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sentenced to 18 months to two years of imprisonment. The three affiants all maintain that
defense counsel assured them that the prison sentence would not exceed three years.
Burton argues that, if not for defense counsel’s promise that he would not receive more
than three years of prison, he would not have agreed to plead guilty.
{¶16} In ruling on the motion for postconviction relief, the trial court judge noted
that he had presided over Burton’s change of plea and sentencing hearings. The court
determined that the affiants’ statements contradicted the record, because, at the plea
hearing, Burton indicated that he understood that he was pleading guilty to a felony of the
second degree carrying with it a prison term of between two and eight years, and Burton
confirmed that no promises were made to him by the court, the prosecutor, or his attorney
as to what sentence the court would impose. The court further found that the affiants
were persons likely to be interested in the success of Burton’s petition. Accordingly, the
trial court determined that the affiants’ statements lacked credibility. Further, even if the
affidavits were accepted as true, the plea colloquy should have dispelled any reliance on
the attorney’s promise that Burton would receive no more than three years in prison. In
addition, the court noted that the affidavits failed to address Burton’s claim that defense
counsel failed to properly investigate his case. Consequently, the court determined that
Burton did not produce sufficient credible evidence that substantive grounds for relief
exist.
{¶17} We cannot say that the trial court’s judgment does not comport with reason
or the record or that it amounts to an abuse of discretion. Accordingly, Burton’s second
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assigned error lacks merit. The judgment is affirmed.
MARY JANE TRAPP, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
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