State v. Cole

[Cite as State v. Cole, 2021-Ohio-2445.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110076
v. :
GEORGE ALLEN COLE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 15, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-14-588878-B, CR-14-589681-A, and CR-14-590944-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Katherine Mullin and Gregory J. Ochocki,
Assistant Prosecuting Attorneys, for appellee.
Patituce & Associates, L.L.C., and Joseph Patituce, for
appellant.
SEAN C. GALLAGHER, J.:
George Allen Cole (“Cole”) appeals the trial court’s denial of his
petition for postconviction relief. We affirm.
This is not Cole’s first foray into the appellate world. In State v. Cole,
8th Dist. Cuyahoga Nos. 103187, 103188, 103189, and 103190, 2016-Ohio-2936,
Cole’s convictions for six burglaries between July and August 2014 were affirmed.
Id. The trial court imposed an aggregate term of imprisonment of 23 years. Cole’s
codefendants, his girlfriend Danielle Panagopoulos and his brother John Cole
(“John”), were also indicted and convicted as co-conspirators, and Panagopoulos
testified at Cole’s trial based on a plea agreement she reached with the state. Id. at
¶ 2, 22. After the direct appeal, Cole’s timely motion for postconviction relief was
denied without a hearing. In State v. Cole, 8th Dist. Cuyahoga No. 106930, 2019-
Ohio-3089, the panel remanded the matter to the trial court over confusion with
affidavits Cole intended to file in support of the petition for postconviction relief. Id.
Cole inadvertently attached the affidavits to his motion for appointment of counsel,
which was summarily denied given the civil nature of the proceeding. The panel
concluded that the trial court had not reviewed the two affidavits in rendering its
conclusion that Cole failed to support his motion with evidence. Id. at ¶ 25. The
matter was remanded for the purpose of permitting the trial court to review the
affidavits that had been buried in Cole’s postconviction filings. Id.
Those affidavits were from the codefendants. John asserted that Cole
lacked knowledge of the stolen credit card that Cole personally used at a convenience
store and that Panagopoulos was the driver of the vehicle related to the allegations
in one of the six cases under which Cole was indicted. John also claimed that had
he been called to testify at Cole’s trial, he would have presented this information.
John alleged that he told Cole’s attorney of this desire to testify “countless” times.
Panagopoulos, Cole’s significant other, claimed that she perjured herself at Cole’s
trial in exchange for a plea deal she entered for her part in the burglaries. She claims
the state pressured her through a plea offer in exchange for her testimony
incriminating Cole in the string of burglaries. After considering the affidavits on
remand, the trial court noted that the affidavits were from Cole’s codefendants, who
shared familial or romantic relationships with Cole. The trial court found little
credibility in the affidavits and again denied the petition without conducting an
evidentiary hearing.
A petition for postconviction relief is of statutory creation. “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, 714 N.E.2d 905 (1999), 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. Further, “a
trial court acts as a gatekeeper, determining whether a defendant will even receive a
hearing.” State v. Hines, 8th Dist. Cuyahoga No. 89848, 2008-Ohio-1927, ¶ 8, citing
Gondor. Through the trial court’s gatekeeping function in the postconviction
proceedings, the trial court “is entitled to deference, including the court’s decision
regarding the sufficiency of the facts set forth by the petitioner and the credibility of
the affidavits submitted.” Id., citing Calhoun.
In this appeal, Cole claims that the trial court abused its discretion in
denying his petitions after declaring his codefendants’ affidavits to lack credibility.
On this point, Cole claims that the trial court erred in denying his petition without
hearing because the Ohio Supreme Court in Calhoun, a decision that permits the
trial court to review the credibility of interested affiants without a hearing, did not
have the benefit of the legislative amendments to R.C. 2953.21 that occurred in 2017.
Those amendments permit expanded discovery during the postconviction process.
According to Cole, the 2017 amendments supersede Calhoun’s conclusion that the
trial court must perform the gatekeeping function in considering affidavits from
persons interested in the defendant’s future.
In S.B. 139, effective April 6, 2017, the legislature indeed added
several subdivisions to R.C. 2953.21 involving expanded discovery proceedings for
offenders sentenced to death. See R.C. 2953.21(A)(1)(d)-(j). Although the
legislature expanded the opportunity for discovery during the postconviction
process, that expanded discovery expressly applies to offenders sentenced to death.
As a result, the amended discovery procedures did not impact the conclusion
reached in Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905. Calhoun controls.
“[A] trial court should give due deference to affidavits sworn to under
oath and filed in support of the petition, but [it] 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” in determining whether a hearing is
necessary. Id. at paragraph one of syllabus. In determining the credibility of
supporting affidavits in postconviction relief proceedings, Calhoun instructed that
the reviewing court should consider
(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.
Id. at 285. In this case, the above factors support the trial court’s credibility
determinations or, as it may be, the trial court’s conclusion that the affidavits were
incredible.
In this case, the trial judge presided over Cole’s trial and the affidavits
were from a relative or one interested in the success of Cole’s efforts. The affidavits
from the codefendants uniformly sought to downplay Cole’s role in the burglaries.
Panagopoulos’s affidavit expressly contradicted her trial evidence. Panagopoulos
claimed that her trial testimony was coerced based on the state’s plea offer, a
credibility issue that was extensively vetted during cross-examination at Cole’s trial.1
Courts have “repeatedly acknowledged the unreliability of recanting witnesses
stating that ‘newly discovered evidence which purportedly recants testimony given
at trial is looked upon with the utmost suspicion.’” State v. Corbin, 8th Dist.
Cuyahoga No. 73647, 1999 Ohio App. LEXIS 6386, 9 (Dec. 30, 1999); quoting State
v. Brooks, 8th Dist. Cuyahoga No. 65088, 1994 Ohio App. LEXIS 910 (Mar. 10,
1994), and State v. Germany, 8th Dist. Cuyahoga No. 63568, 1993 Ohio App. LEXIS
4687 (Sept. 30, 1993). Nothing in Panagopoulos’s affidavit presents any compelling
1 Cole filed a written motion for acquittal under Crim.R. 29 in which he thoroughly
discussed Panagopoulos’s credibility issues considering her plea agreement. At that time,
Cole argued that Panagopoulos had no information tying Cole to the crimes and only
provided the incriminating information to avoid her own legal troubles.
reason to overcome the inherent skepticism through which the recanted testimony
is viewed.
John’s affidavit, because he is not only a codefendant but also Cole’s
brother, is similarly questionable and inherently unreliable. Courts generally note
“the highly questionable nature of affidavits from family members.” State v.
Caldwell, 8th Dist. Cuyahoga No. 73748, 1998 Ohio App. LEXIS 4220 (Sept. 10,
1998). Further, Cole only set out information pertaining to two of the six burglaries,
and that information was expressly contradicted with independent witness or
demonstrative evidence at trial.
On that latter point, the trial evidence against Cole was extensive. As
for the stolen credit card that John questions, police identified surveillance video of
two men using the stolen credit card at a gas station. The store clerk testified at
Cole’s trial and identified “Cole, whom she happened to be related to, as the man
who used the stolen credit card.” Cole, 8th Dist. Cuyahoga Nos. 103187, 103188,
103189, and 103190, 2016-Ohio-2936, at ¶ 8. Cole had used the stolen credit card
to purchase items at the station, discrediting any claims by John that Cole knew
nothing about the stolen credit card. Id.In another burglary, Cole was identified by the victim through
surveillance video from another nearby gas station. Id. at ¶ 10. In that video, Cole
can be seen as one of two men, one of whom walked up to the victim’s driveway, and
Cole can be seen parking the vehicle on the victim’s street. Id. at ¶ 11. In a third
burglary, the state presented text messages between John and Cole describing the
pawning of the stolen item, and in yet another criminal episode, Cole drove
Panagopoulos and John to the pawn shop to sell stolen items that were connected
to an earlier burglary. Id. at ¶ 19, 21. Although the trial testimony was far more
extensive, the above identifications directly implicating Cole are not addressed in
Cole’s petition for postconviction relief despite the fact that the victims and
independent evidence identify Cole as a perpetrator of the crimes.
Considering the totality of the evidence presented at trial, we cannot
conclude that the trial court abused its discretion in finding the affiants to be
incredible without a hearing. Cole has demonstrated no error. The sole assignment
of error presented for our review is overruled.
The decision of the trial court is 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.
________________________________
SEAN C. GALLAGHER, JUDGE
MARY J. BOYLE, A.J., and
EMANUELLA D. GROVES, J., CONCUR