[Cite as State v. Henry, 2019-Ohio-1256.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   Appellate Case Nos. 2018-CA-72 &
                                                  :                    2018-CA-88
 v.                                               :
                                                  :   Trial Court Case Nos. 1999-CR-296 &
 ANJUAN HENRY                                     :                       1999-CR-584
                                                  :   (Criminal Appeal from
         Defendant-Appellant                      :    Common Pleas Court)
                                                  :

                                             ...........

                                            OPINION

                              Rendered on the 5th day of April, 2019.

                                             ...........

ANDREW P. PICKERING, Atty. Reg. No. 0068770, Clark County Prosecutor’s Office,
Appellate Division, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502
      Attorney for Plaintiff-Appellee

ANJUAN HENRY, #401-154, P.O. Box 69, London, Ohio 43140
     Defendant-Appellant, Pro Se

                                            .............
                                                                                         -2-




HALL, J.

        {¶ 1} In two consolidated cases, Anjuan Henry appeals pro se from the trial court’s

denial of a motion for a new trial in the first case and the denial of a petition for post-

conviction relief in the second one.

        {¶ 2} Henry advances three assignments of error. First, in Clark App. No. 2018-

CA-72, his appeal of a drug-possession case, he contends the trial court erred in denying

his new-trial motion. Second, he claims the trial court erred in failing to ask whether he

wanted counsel appointed to assist him with the evidentiary hearing on the new-trial

motion. Third, in Clark App. No. 2018-CA-88, he asserts that the trial court erred in

denying his petition for post-conviction relief without a hearing.1

    Background for three cases - Henry sent to prison beginning September 2000.

        {¶ 3} Henry’s first trial began on May 15, 2000. The jury found Henry guilty in two

consolidated cases. The first involved convictions on charges of possession of more than

100 grams of crack cocaine with a major-drug-offender specification, Clark C.P. No. 99-

CR-296, relating to an event on June 3, 1999. The second involved two counts of drug

trafficking, Clark C.P. No. 99-CR-584, relating to events on October 20 and 22, 1999.

The court was unable to promptly sentence Henry because he went on the run. He was

later arrested and sentenced to prison for both cases on September 22, 2000. On direct



1  We note that the State of Ohio filed a combined “Brief of Appellee, The State of Ohio”
that is file stamped December 27, 2018 and correctly docketed in each of these
consolidated Case Nos. 18-CA-0072 and 18-CA-0088. However, those briefs incorrectly
list the appellate case numbers as 17-CA-0072 and 17-CA-0088. We conclude the case
numbers are a typographical error and accept the briefs as filed and docketed.
                                                                                        -3-


appeal, in February 2002, this court determined that Henry should have been granted a

requested continuance on the day of the trial because he had been shot in the neck the

day before, hospitalized and released, but was still recuperating. We further determined

that the cases should not have been tried together. State v. Henry, 2d Dist. Clark No.

2000-CA-80, 2002-Ohio-391. The convictions were reversed, and the matter was

remanded. However, Henry remained in prison after the reversals because, in the interim,

he was convicted after a plea in Clark C.P. No. 00-CR-429, an unrelated possession of

crack cocaine conviction, for which he remained in prison serving a sentence of five years,

which began in June 2001.

      {¶ 4} Thereafter, while still in prison, in June 2003 Henry was re-tried in Case No.

99-CR-296, the possession with major drug offender specification case. He was convicted

on the possession charge with the specification and sentenced to prison for an aggregate

of seventeen years (ten for possession consecutive to seven for the specification), which

was ordered to be served consecutively to the five-year sentence in Case No. 00-CR-429

(the unrelated possession of crack cocaine).

      {¶ 5} Later, Henry was again returned to Clark County for the trafficking case,

Case No. 99-CR-584, where he pled no contest to the drug-trafficking charges in

November 2003 under an agreement that his sentence would be concurrent with the 17-

year sentence he was serving in Case No. 99-CR-296. The trial court found him guilty

and imposed two five-year prison terms, consecutive to each other but concurrent with

the 17-year sentence he was serving for possession in Case No. 99-CR-296.

      {¶ 6} The convictions and sentences in Case Nos. 99-CR-296 and 99-CR-584

were appealed, consolidated, and affirmed on direct appeal in State v. Henry, 2d Dist.
                                                                                          -4-


Clark Nos. 2003-CA-47 & 2003-CA-88, 2005-Ohio-4512, although it does not appear that

there were any errors assigned for the no-contest pleas to the trafficking charges.

          2016 Motion for leave and for a new trial in Case No. 99-CR-296,

            and Petition for post-conviction relief in Case No. 99-CR 584

       {¶ 7} In April 2016, Henry moved for leave to file a delayed new-trial motion in the

Case No. 99-CR-296 drug-possession case. His motion included affidavits from himself

and from a person he indicated was his “ex-fiancée,” averring that his attorney had been

having an affair with his “ex-fiancée” during his June 2003 trial, ostensibly while she still

was his fiancée, although he had been in prison since September 2000. In May 2016,

Henry submitted a supplemental affidavit averring that his “ex-fiancée” did not tell him

about the affair until February 2016. Before any ruling on his motion for leave, in June

2016, Henry also filed his motion for a new trial alleging ineffective assistance of counsel

due to a conflict of interest created by the affair. The trial court denied both motions in

September 2016 and November 2016, and Henry appealed. On review, we specifically

analyzed Henry’s filings in Case No. 99-CR-296, the April 5, 2016 “Crim. Rule 33(B)

Motion For Leave To File A Delayed Motion For A New Trial” and the June 14, 2016

“Criminal Rule 33(A)(1) New Trial Motion,” as Crim.R. 33 pleadings, as opposed to R.C.

2953.21 petitions for post-conviction relief. In our opinion, we reversed and remanded,

noting that “[t]he trial court overruled Henry’s motion for leave without providing

reasoning for doing so.” State v. Henry, 2017-Ohio-7426, 96 N.E.3d 1123, ¶ 20 (2d Dist.).

Our remand could have been clearer as to whether a hearing on Henry’s filings was

required. We said: “[B]ased on the record before us, we conclude that the trial court

abused its discretion in overruling Henry’s motion for leave without a hearing. A
                                                                                        -5-


remand is necessary for the trial court to consider, in the first instance, whether the

affidavits submitted by Henry in support of his motion for leave credibly establish, by

clear and convincing proof, that he was unavoidably prevented from discovering the

evidence of the affair between his trial counsel and his ex-fiancé.” Id.

      {¶ 8} Also in April 2016, Henry separately filed a delayed petition for post-

conviction relief in the drug-trafficking case, Case No. 1999-CR-584.2 He again relied on

the affidavits from himself and his ex-fiancée about an affair between his attorney and his

ex-fiancée while his attorney was representing him. The trial court denied the petition in

November 2016, and Henry appealed. This court initially stayed that appeal and then, on

the same date we reversed the above possession case, by separate opinion, we reversed

and remanded this trafficking case primarily on the basis that the trial court incorrectly

had treated the Case No. 99-CR-584 petition as a Crim.R. 32.1 motion to withdraw a plea,

instead of as an R.C. 2953.21 post-conviction relief petition; we also found that the trial

court had failed to provide sufficient findings of fact and conclusions of law, which,

unless a petition is dismissed as untimely, are required for ruling on an R.C. 2953.21

petition. In our opinion, we specifically determined: “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. Henry, 2017-Ohio-7427, 96 N.E.3d 1139, ¶ 16 (2d Dist.). Our remand in


2 A petition for post-conviction relief, rather than a motion for a new trial, is more
applicable in this trafficking case because Henry’s convictions in Case No. 99-CR-584
were by way of no-contest pleas, rather than by way of the trial, as in the possession
case, Case No. 99-CR-296.
                                                                                            -6-


the trafficking case indicated that the court should first exercise its discretion to evaluate

the credibility of Henry’s post-conviction filings, as permitted in R.C. 2953.21 proceedings,

and further directed the trial court to proceed to issue a ruling in accordance with Crim.R.

35.

                          Proceedings after the 2017 remands.

       {¶ 9} On remand of the possession case, the trial court held a February 15, 2018

hearing solely to determine whether Henry had been unavoidably prevented from

discovering the evidence supporting his new-trial motion sooner.3 The only witness called

at the hearing was Henry’s ex-fiancée, Erica Bibbs. At the conclusion of the hearing, the

trial court ruled orally from the bench and sustained Henry’s motion for leave to file a

delayed new-trial motion. (Feb. 15, 2018 Transcript at 46-47).

       {¶ 10} The trial court then held an April 23, 2018 evidentiary hearing on the merits

of Henry’s new-trial motion. Henry appeared at the hearing pro se, but he declined to call

any witnesses or to present any evidence. (April 23, 2018 Transcript at 3-4). The trial

court indicated that it would review a pre-hearing memorandum Henry had submitted as

well as any supplemental briefing the parties wished to file. (Id. at 4). Thereafter, the trial

court filed a May 29, 2018 entry overruling Henry’s motion for a new trial. (Doc. #17 in

Case No. 99-CR-296). It found “a lack of credibility” in the affidavits and Bibbs’ testimony

submitted in connection with Henry’s motion for leave, contradictions in her assertion that

she always considered herself Henry’s fiancée during their on-and-off-again relationship,



3 A transcript of the hearing is captioned “Motion for Post-Conviction Relief.” But the
hearing actually addressed only whether Henry had been unavoidably prevented from
discovering evidence of the alleged affair to support his motion for leave to file a new-trial
motion. (See Feb. 15, 2018 Transcript at 7-9, 46-47).
                                                                                            -7-


and that she had a strong interest in the success of his new trial effort. The trial court also

noted Henry’s failure to present any evidence at the merits hearing. Finally, the trial court

held that the affidavits and Bibbs’ testimony failed to meet Henry’s burden to show there

was an irregularity by way of conflict of interest and that he failed to show that any

perceived irregularity had any effect on the effective assistance of counsel, a fair trial, or

any other substantial right. (Id. at 2-4).

       {¶ 11} With regard to Henry’s separate motion for post-conviction relief in the drug-

trafficking case, Case No. 99-CR-584, the trial court filed a June 19, 2018 entry reaching

essentially the same conclusions. (Doc. #2 in Case No. 99-CR-584). After considering

the affidavits and testimony from Bibbs cited above as well as Henry’s written arguments

in support of post-conviction relief, the trial court found a “lack of credibility” in Henry’s

evidence. The trial court also found that he had failed to meet his burden to show there

was such a denial or infringement of his rights as to render the judgment against him in

the drug-trafficking case void or voidable under the Ohio or United States Constitution.

With regard to the alleged affair and possible ineffective assistance of counsel, the trial

court noted that Henry’s attorney had negotiated a favorable plea resulting in an

aggregate ten-year sentence to be served concurrently with the longer sentence in the

drug-possession case, meaning that Henry would serve no additional prison time as a

result of the trafficking convictions. (Id. at 1-3). Parenthetically, the 10-year sentence in

that case, running concurrent with the sentence in Case No. 99-CR-296, now would be

completed.

                                    The current appeals.

                                     A. Right to counsel
                                                                                                 -8-


       {¶ 12} On appeal, Henry challenges the trial court’s denial of his new-trial motion

in the drug-possession case and its denial of post-conviction relief in the drug-trafficking

case. He also challenges the trial court’s failure to ask whether he wanted counsel

appointed to assist him with the merits hearing on his new-trial motion. Understandably,

Henry sometimes conflates the legal issues in the Crim.R. 33 motion for a new trial case

and the R. C. 2953.21 post-conviction relief case. For purposes of our analysis, we turn

first to the issue of appointed counsel.

       {¶ 13} Henry’s second assignment of error states: “The trial court erred in failing

to inquire as to whether appellant wanted to avail himself of his Sixth Amendment right to

the appointment of counsel at a critical stage of the proceedings.” His argument refers to

the trial court’s April 23, 2018 hearing on his motion for a new trial. The State correctly

notes, however, that Henry lacked a constitutional right to counsel in connection with his

new-trial motion. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d

539 (1987) (recognizing that the constitutional right to appointed counsel extends only to

a first appeal of right). Therefore, the trial court did not err in failing to inquire as to whether

he wanted to avail himself of any Sixth Amendment right to counsel.

       {¶ 14} In a related argument under his second assignment of error, Henry asserts

that “[i]f an evidentiary hearing is ordered in a postconviction proceeding, the right to

counsel exists under Ohio law.” (Appellant’s brief at 12). For this proposition, he cites

“State v. Robison 1989 Ohio App. Lexis 2655” in the narrative and table of authorities of

his brief. More accurately, the case is found at State v. Robison, 4th Dist. Pickaway No.

88 CA 15, 1989 WL 72802 (June 19, 1989). In that case, the court determined that there

is no constitutional right to counsel for processing an R.C. 2953.21 petition. Only if an
                                                                                              -9-


evidentiary hearing is ordered for an R.C 2953.21 petition does a petitioner have a

statutory right to have the public defender review the case, but the public defender is only

required to represent the petitioner if the public defender “is first satisfied there is arguable

merit to the proceeding.” See R.C. 120.16(D). This right, inapplicable in Robison itself

because there was no hearing, was later adopted by the Ohio Supreme Court in State v.

Crowder, 60 Ohio St.3d 151, 152, 573 N.E. 2d 652 (1991). Crowder also engrafted an

implicit right to have the trial court notify the public defender if an R.C. 2953.21 merit

hearing is ordered. Id. at 153. But in doing so, the Crowder court reiterated that “an

indigent petitioner has neither a state nor a federal constitutional right to be represented

by an attorney in a postconviction proceeding.” Id. at 151. The right to have the public

defender review a case, and perhaps provide representation, when a merits hearing has

been set for a R.C 2953.21 petition is, therefore, a case-law interpretation of a statutory

procedure, not a constitutional right.

       {¶ 15} Henry’s own argument that he had a right to counsel, however, is a

constitutional one. He refers to the Crim.R. 33 hearing as “ ‘a critical stage of the

proceedings’ for Sixth Amendment purposes.” (Brief at 13). Because there is no

constitutional right to counsel for a new trial motion or a hearing thereon, and because

we have previously determined that Henry’s pleading in the possession case was a

Crim.R. 33 proceeding, he had no constitutional right to counsel in the motion for a new

trial hearing. And, he had no Crowder right to notice to the public defender for the R.C.

2953.21 petition in his trafficking case because the court decided that case without a

hearing. The Crowder right to notice only applies to R.C. 2953.21 proceedings and only

if an evidentiary hearing is ordered.
                                                                                          -10-

       {¶ 16} Although Crowder involved statutory interpretation and a court-engrafted

public defender notice related to a petition for post-conviction relief hearing, and although

Henry does not make the following specific argument, we have considered whether the

statutory right and case-created implicit requirement of notice to the public defender

should apply to a Crim.R. 33 hearing. We note that R.C. 120.16(D), upon which the

Crowder right is based, addresses the public defender’s involvement in “any * * *

postconviction remedy.” An argument could be made that Henry’s Crim.R. 33 remedy is

broadly a postconviction remedy. However, there are multiple reasons why we conclude

that Crowder does not apply here.

       {¶ 17} First, by the express terms of the Crowder decision, it only applies to R.C.

2953.21 proceedings. “R.C. 120.16(A)(1) and (D) implicitly require the trial court, upon

concluding that the petitioner in a postconviction proceeding is entitled to an evidentiary

hearing pursuant to R.C. 2953.21(C) and (E), to promptly notify the public defender of the

pending hearing.” (Emphasis added.) Crowder at paragraph two of the syllabus.

       {¶ 18} Second, Crowder was decided more than 27 years ago, and since that time

there have been numerous cases recognizing that a right to counsel only applies to the

first appeal as of right and no further. In those years, we have found no case that applies

the Crowder notice right to a Crim.R. 33 motion for a new trial and only one case that

applied the Crowder right to a criminal motion, that being a Crim.R. 32.1 motion to

withdraw a plea.4 In State v. Buchanan, 10th Dist. Franklin No. 96APA11-1527, 1997 WL


4 In State v. McNeal, 8th Dist. Cuyahoga No. 82793, 2004-Ohio-50, a post-sentence
Crim.R. 32.1 motion had been correctly denied without a hearing. Despite the conclusion
that a hearing was not required, the court of appeals opined in fn. 12 that a Crim.R. 32.1
motion is a postconviction remedy under Crowder and R.C. 120.16. Because the case
did not involve an evidentiary hearing, this footnote is obvious dicta, unnecessary and
                                                                                         -11-


325954, *3-4 (June 10, 1997), Buchanan entered pleas to two counts of rape in February

1996. In late March 1996, he filed a “ ‘motion for court appointed counsel to appeal.’ In

this document, he alleged that he had a mental illness and had been heavily medicated

when he entered his pleas; thus, ‘he did not understand what he was doing’ when he

entered his guilty pleas. In addition, Mr. Buchanan claimed that trial counsel advised him

to mislead the court about his drug use and mental condition.” Id. at * 1. Two months later

he filed, pro se, a motion to withdraw his pleas under Crim.R. 32.1. The court scheduled

the motion for an evidentiary hearing and did not address the request for counsel. The

court of appeals observed “[o]ur review of the transcript reveals Mr. Buchanan’s

undeniable lack of ability to represent himself under these circumstances.” Id. at *3.

Finally, the court of appeals concluded:

       In the motion filed by Mr. Buchanan, he was seeking to vacate his plea

       under the terms of Crim.R. 32.1. However, he also was seeking

       postconviction relief to the extent that he was alleging denial of his right to

       effective assistance of counsel. As a result, once the trial court found

       sufficient merit in the motion/petition to warrant an evidentiary hearing, the

       trial court needed to address Mr. Buchanan’s right to counsel, especially

       after Mr. Buchanan requested the assistance of counsel for the hearing.

(Emphasis added.) Id. Under these circumstances, the Buchanan court reversed and

remanded with instructions for the trial court to appoint counsel to represent Buchanan at

the “post conviction” hearing.

       {¶ 19} Here we had determined in the previous appeal that Henry’s new trial


extraneous to the decision.
                                                                                         -12-


motion in Case No. 99-CR-296 was a Crim.R. 33 motion, not a Crim.R. 32.1 motion, not

an R.C. 2953.21 proceeding, and not some hybrid proceeding as suggested in Buchanan.

Henry argues that the trial court erred by failing to sua sponte inquire whether he wanted

to proceed with appointed counsel. Henry does not contend that he requested

appointment of counsel at the April 23, 2018 hearing. There also is no indication that

Henry was affected by mental illness or heavily medicated. He adroitly has handled

multiple appeals, some of which were successful, and he has filed in this court several

applications for writs of mandamus over the years to get the trial court to rule on motions

he filed. Finally, the Buchanan motion was filed only a short time after the contested plea

as opposed to Henry’s motion filed 15 years after the beginning of the events about which

he complains. Given all these differences, we conclude that the Buchanan disposition

does not apply to resolution of Henry’s Crim.R. 33 hearing.

       {¶ 20} The second assignment of error is overruled.

 The trial court did not abuse its discretion overruling the Motion for a new trial.

       {¶ 21} In his first assignment of error, Henry challenges the trial court’s denial of

his new-trial motion.

       {¶ 22} “A trial court’s decision on a Crim.R. 33 motion for a new trial will not be

reversed absent an abuse of discretion.” State v. Gillispie, 2d Dist. Montgomery No.

24456, 2012-Ohio-1656, ¶ 31, citing State v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54

(1990), paragraph one of the syllabus; State v. Matthews, 81 Ohio St.3d 375, 378, 691

N.E.2d 1041 (1998). “ ‘Abuse of discretion’ has been defined as an attitude that is

unreasonable, arbitrary or unconscionable.” (Citation omitted.) AAAA Ents., Inc. v. River

Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597
                                                                                         -13-

(1990).” State v. DeVaughns, 2018-Ohio-1421, 110 N.E.3d 922, ¶ 15 (2d Dist.).

       {¶ 23} In support of his motion for leave to file a motion for a new trial, Henry

submitted his own affidavit and his own supplemental affidavit, which essentially stated

his “ex-fiancée” Erica Bibbs informed him in 2016 that she had an affair with his trial

attorney “leading up to and during my June 2003 jury trial.” He also submitted an affidavit

from Erica Bibbs which 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.”

       {¶ 24} On remand, the trial court conducted a hearing on February 15, 2018

confined to the issue of whether Henry had been unavoidably prevented from discovering

the facts upon which his motion for a new trial was based, and therefore whether he

should be granted leave to file the new trial motion. Erica Bibbs was the only witness

Henry called at that hearing. She testified that she had a romantic, intimate relationship

with Henry’s 2003 trial counsel, Daniel L. O’Brien, before and during the 2003 trial.

(Transcript, February 15, 2018, at 12.) She said she was engaged to Henry at the time.

Id. She was engaged to Henry twice, the first time in 1999 during Henry’s first trial and

then “we lost contact for a while” and then got reengaged “while he was locked up again.”

(Id. at 16). The reengagement was “probably 2002 maybe, give or take,” while he was in

prison. (Id.) Bibbs said that he did not give her a ring for the reengagement but “we talked

about it over the phone.” (Id. at 17). (For context, as previously noted, Henry has

continuously been in prison, except when transported in custody for various court

appearances, since September 2000.) Before that he was “on the run.” (Id. at 18).

       {¶ 25} Bibbs also testified that the relationship with the attorney started in the
                                                                                          -14-

“middle of 2000,” (Id. at 17), “like August or something like that of 2000.” (Id. at 28). This

was about the time that Henry was on the run, then he was caught and then went to

prison. Bibbs could not put a number on the times she and the attorney saw each other

stating “20,30,40,50” times. (Id. at 19). They went to restaurants and hotels but she could

only name one restaurant, where she met the attorney’s brother, and one hotel where

they went in 2000. (Id. 20-21). She recalled: “From 2000 to 2005 we were together about,

I don’t know endless amounts of time.” (Id. at 20).

          {¶ 26} Henry is the father of two of Bibbs’ children, a boy born in 1998 and a girl

born in 1999. (Id. at 28). Bibbs said they first became engaged in 1999. (Id. at 27). When

asked when this engagement ended, she said, “I wasn’t sure. We still were

communicating.” (Id.). And when asked if she believed the engagement was over when

the relationship with the attorney began, she said, “Honestly, I didn’t think about it.” (Id.

at 29).

          {¶ 27} During the time Henry was in prison, Bibbs also had romantic relationships

with two other men. The first began around the “end of 2003, 2004” and was “on and off.”

(Id. at 43). She had a child from that relationship in early August 2004. (Id. at 44). That

relationship lasted until 2008. (Id. at 43). The second other relationship was from 2009

until 2012. (Id. at 44).

          {¶ 28} During all the time Henry was in prison, Bibbs never went to visit him. (Id.

at 36). She never took the children to visit him. (Id.). She would provide him with

commissary money books and pictures of the children. (Id. at 35). Their communication

was by mail for about the first half of his sentence and then some phone calls. (Id. at 36-

37).
                                                                                         -15-


       {¶ 29} Finally, she said that the attorney would sometimes state that he needed

more money for Henry’s representation, but he never got any more money. (Id. at 38-39).

The attorney never said why he was still representing Henry without getting more money.

(Id.). When asked if she thought that was because she was continuing in a relationship

with the attorney, she said, “Honestly, I didn’t think about it.” (Id.).

       {¶ 30} Bibbs did not offer any testimony about the attorney’s conduct that might

have related to representation or deficiency during the June 2003 trial, or for that matter,

related to the November 2003 pleas in the trafficking case.

       {¶ 31} We observe that if Bibbs’ testimony is taken at face value, she was engaged

to Henry in 1999, “lost contact” and was reengaged in 2002. The relationship with the

attorney, beginning about August 2000, was therefore ongoing before Bibbs was re-

engaged in 2002. There was no testimony that Bibbs informed the attorney that she had

become reengaged.

       {¶ 32} Henry argues he has shown that the attorney had a conflict of interest during

the 2003 trial because his attorney was in a romantic relationship with Bibbs and that

prejudice is presumed so he does not have to prove the conflict negatively affected the

attorney’s representation. We disagree.

       {¶ 33} As to the romantic relationship with Bibbs, the only evidence about the

alleged affair was at the February 15, 2018 hearing when Bibbs was the only witness. At

the beginning of that hearing, it was made explicitly clear that the hearing was to address

Henry’s motion for leave to file a motion for a new trial and whether Henry was

unavoidably delayed in the discovery of the evidence that he would use to support the

motion for a new trial. It was not a merits hearing on the motion for a new trial. At the
                                                                                            -16-


conclusion of the hearing, the trial court ruled that leave to file a motion for a new trial was

granted. The April 23, 2018 proceeding was the hearing on the motion for a new trial.

Henry did not present any evidence, apparently because he believed, and he now argues,

that an attorney’s affair with his client’s wife during the representation is necessarily a

conflict of interest and prejudicial per se.

        {¶ 34} Despite the fact that Henry introduced no evidence at the merits hearing,

the trial court nonetheless considered the testimony of Bibbs and the affidavits that had

been filed. It reasoned: “Having reviewed the affidavits and the testimony of Ms. Bibbs

and considering the lack of any further testimony at the hearing on the merits of the

defendant’s motion for a new trial, the Court finds a lack of credibility in regards to the

affidavits and the testimony.” (Case No. 99-CR-296, Doc. #17 at 3). The trial court also

indicated that it was unclear whether Bibbs was Henry’s fiancée at the time of the 2003

trial and that her assertion that she had always been his fiancée was contradicted by her

affidavit referring to herself as an ex-fiancée. (Id.). The court concluded that the defendant

had failed to meet his burden to show that there was an irregularity by way of conflict of

interest at his trial. (Id. at 3).

        {¶ 35} The trial court’s preceding conclusion was not unreasonable and was

supported by the record. Henry had been in prison since November 2000. Bibbs said she

had been engaged to him in 1999 but “lost contact,” and claimed that they got re-engaged

over the phone sometime in 2002. As of that time, Henry was in prison and would have

remained in prison for at least four more years on the unrelated possession conviction

regardless of what happened in the two cases now on appeal.5 As of her 2018 testimony,


5   As noted above, the original convictions in Case Nos. 99-CR-286 and 99-CR-584 were
                                                                                          -17-


Bibbs had never visited Henry in prison. Henry did not testify to corroborate any of her

testimony. It is apparent that the trial court doubted her credibility. Accordingly, we

determine the trial court did not abuse its discretion by determining Henry had not

demonstrated a conflict of interest, and this determination alone is enough for us to

conclude that the trial court did not err by overruling the motion for a new trial.

       {¶ 36} It is Henry’s contention that a clandestine affair by his attorney with his

fiancée during his trial automatically constituted a conflict of interest and that conflict of

interest automatically constituted prejudice. He relies principally on Disciplinary Counsel

v. Owen, 142 Ohio St.3d 323, 2014-Ohio-4597, 30 N.E.3d 910. Attorney Owen

represented Robert Caulley after Caulley confessed to killing his parents. Caulley was

charged with two counts of aggravated murder with death-penalty specifications and other

charges. Caulley’s wife began working on the case in Owen’s office. Owen and Caulley’s

wife began a sexual relationship shortly before and during the trial. The relationship lasted

for about a year. Disciplinary Counsel v. Owen was a disciplinary case against Owen in

which the Supreme Court said that “a lawyer’s sexual relationship with the spouse of a

current client creates an inherent conflict of interest.” Id. at ¶ 29. As a result, Owen was

found to have violated several disciplinary rules and was suspended from the practice of

law for two years.

       {¶ 37} Because Owen was a disciplinary case, it did not deal with the viability of

the client’s conviction and the impact, if any, the attorney’s relationship with his client’s

wife had on the trial. And although the Owen court said that a sexual relationship with a



reversed and remanded on February 1, 2002. Henry, 2d Dist. Clark No. 2000-CA-80,
2002-Ohio-391.
                                                                                           -18-

client’s wife violated the client’s right to effective assistance of counsel, id. at ¶ 32, that

expression was unnecessary and irrelevant to the disciplinary question of whether Owen

violated disciplinary rules by his actions. Therefore, the sentence is dicta. Furthermore,

no matter how unethical or repugnant we may view the attorney’s alleged conduct, the

viability of the client’s verdict in the Owen case was correctly analyzed in the underlying

case regarding Caulley’s motion for a new trial, State v. Caulley, 10th Dist. Franklin No.

12AP-100, 2012-Ohio-2649, ¶ 19, aff’d, 136 Ohio St.3d 325, 2013-Ohio-3673, 995 N.E.2d

227. In Caulley, the Tenth District found an actual conflict of interest where a defendant’s

attorney had an affair with the defendant’s wife while representing the defendant at trial.

However, the Tenth District proceeded to consider whether the conflict had adversely

affected counsel’s performance. Id. at ¶ 22-24. “In order to satisfy a claim of ineffective

assistance of counsel based on a conflict of interest, a criminal defendant must

demonstrate that an actual conflict of interest adversely affected trial counsel’s

performance. State v. Alexander, 10th Dist. No. 05AP-192, 2006-Ohio-1298, ¶ 20, citing

State v. Keith, 79 Ohio St.3d 514, 535 (1997).” Id. Ultimately, the Tenth District found no

abuse of discretion in the trial court’s determination that counsel’s division of loyalties did

adversely affect counsel’s performance, and that was the basis upon which the new trial

was granted. Id. In particular though, the Tenth District cited “significant testimony

indicating that trial counsel spent substantial time with [the defendant’s wife] during the

trial when he should have been preparing for trial.” Id. at ¶ 24.

       {¶ 38} In light of the persuasive authority of Caulley, we agree that an attorney’s

sexual relationship with his client’s wife during the representation presents an actual

conflict of interest, but we also agree that to obtain a new trial a defendant must further
                                                                                            -19-


demonstrate that the conflict adversely affected trial counsel’s performance. Henry’s

evidence fails on both fronts. No matter how the on-and-off connection between Henry

and Bibbs is construed, and whenever it took place, on this record we fail to see how the

described liaison between Bibbs, who for 18 years has never visited Henry in prison and

who had multiple intimate partners during the interim, is in the same position as the

defendant’s wife in Caulley with whom his lawyer was having an intimate relationship. So,

in addition to the trial court finding Henry did not prove an actual conflict of interest, we

determine that the relationship here is insufficient to automatically impose an actual

conflict of interest as recognized in Caulley. In addition, there is no evidence whatsoever

that any relationship between Bibbs and Henry’s trial counsel adversely affected trial

counsel’s performance.

       {¶ 39} In his brief, Henry also complains that the trial court’s decision overruling

the motion for a new trial referred to the evaluation factors set forth in State v. Calhoun,

86 Ohio St.3d 279, 714 N.E.2d 905 (1999). Henry argues that the “Calhoun factors do not

apply to live testimony.” (Brief at 6). But the materials before the court included previously

submitted affidavits, testimony from Erica Bibbs presented only at the hearing on the

motion for leave to file the new trial, and legal arguments. The trial court stated that “[i]n

assessing the credibility of the affidavits, the court considered the factors set forth in State

v. Calhoun.” (Emphasis added). The court also evaluated the credibility of Erica Bibbs’

live testimony but did not suggest that evaluation was based on the Calhoun factors. We

need not address whether some or all of the Calhoun factors are also valuable tools to

assess live testimony because that is not what happened here. Henry’s Calhoun

argument raises no error.
                                                                                           -20-

       {¶ 40} Henry also complains that the trial court stated in its Calhoun-factor

evaluation portion of the decision that “[t]his judge is the same judge who presided over

the trial and the plea.” Henry says that “Judge Parrott of Union County presided over the

trial, not Judge O’Neill.” (Brief at 6). Henry has not caused those historical portions of the

record to be transmitted for our review. Nevertheless, assuming that Judge Parrott did

preside over the July 2003 trial, that does not mean that Judge O’Neill did not preside

over the May 2000 jury trial, the November 2003 pleas, or the February 2000 jury trial

where Henry was jointly tried with his accomplice, Terrance Martin, which resulted in a

hung jury. State v. Martin, 2d Dist. Clark No. 2000 CA 77, 2002-Ohio-3301. We do not

doubt that Judge O’Neill is thoroughly familiar with the circumstances of this case from

the multitude of pleadings, trials, pleas, and appeals spanning almost 20 years. If Judge

O’Neil’s recollection of the 2003 trial is mistaken, Henry points to no error that resulted

from this misstatement.

       {¶ 41} The first assignment of error is overruled.

       {¶ 42} In his third assignment of error, Henry contends the trial court erred in

denying his petition for post-conviction relief in the drug-trafficking case. He argues that

his trial counsel should have informed the trial court of a conflict of interest created by the

alleged affair. He also asserts that the conflict of interest could not be “waived,” that

affidavits he submitted were credible, and that his no-contest plea to drug trafficking was

invalid because it was tainted by his attorney’s conflict of interest.

       {¶ 43} Upon review, we find Henry’s third assignment of error to be without merit.

As a threshold matter, the record does not reflect that the trial court held an evidentiary

hearing on Henry’s petition for post-conviction relief. The February 15, 2018 and April 23,
                                                                                           -21-


2018 transcripts in the record pertained only to the new-trial motion and were filed in the

drug-possession case. In its entry denying post-conviction relief, the trial court did briefly

mention Bibbs’ testimony in connection with the new-trial motion. The fact remains,

however, that the trial court’s docket does not reflect a hearing on Henry’s petition for

post-conviction relief. Therefore, we are not confronted with the issue discussed above

regarding the Crowder notice to the public defender, and Henry makes no such argument.

See State v. Simons, 2d Dist. Champaign No. 2013 CA 5, 2013-Ohio-3654, ¶ 35

(recognizing that “the trial court is not required to notify the public defender of an indigent

petitioner’s post-conviction proceedings unless it first concludes that the petitioner is

entitled to an evidentiary hearing”).

       {¶ 44} As for Henry’s claims about the credibility of the affidavits he submitted, we

see no error in the trial court’s ruling even if we assume, arguendo, that Henry’s attorney

did have an affair with his fiancée while representing him. When addressing the alleged

affair and possible ineffective assistance of counsel, the trial court noted that counsel had

negotiated a plea resulting in an aggregate ten-year sentence to be served concurrently

with a longer sentence in the drug-possession case. The result was that Henry would

serve no additional prison time as a result of his trafficking convictions, and that sentence

has now expired. In light of this relatively favorable outcome, the trial court held that Henry

had failed to make a sufficient showing of a denial or infringement of his rights so as to

render his conviction void or voidable under the Ohio or United States Constitution.

       {¶ 45} We review a trial court’s denial of a post-conviction relief petition without a

hearing for an abuse of discretion. Simons at ¶ 13. A trial court may dismiss a petition for

post-conviction relief without a hearing “where the petition, the supporting affidavits, the
                                                                                           -22-


documentary evidence, the files, and the records do not demonstrate that petitioner set

forth sufficient operative facts to establish substantive grounds for relief.” Calhoun, 86

Ohio St.3d 279, 714 N.E.2d 905, at paragraph two of the syllabus. When a petition alleges

ineffective assistance of counsel, the petitioner typically bears the burden to submit

documentary evidence containing sufficient operative facts to show deficient performance

and prejudice. State v. Cox, 2d Dist. Montgomery No. 26136, 2015-Ohio-894, ¶ 8. In the

context of an ineffective-assistance claim, ordinarily prejudice exists where “there is a

reasonable probability that, but for counsel’s deficient performance, the outcome would

have been different.” State v. Wayne, 2d Dist. Montgomery No. 25243, 2013-Ohio-5060,

¶ 22. Where a defendant does not demonstrate how he was prejudiced by counsel’s

performance, he fails to establish substantive grounds for relief and his petition for post-

conviction relief may be denied without a hearing. State v. Pianowski, 2d Dist.

Montgomery No. 25369, 2013-Ohio-2764, ¶ 31.

       {¶ 46} When an ineffective-assistance claim involves an alleged conflict of interest,

the foregoing standards are slightly different. Prejudice will be presumed if an appellant

establishes an “actual conflict of interest” provided that it “adversely affected his lawyer’s

performance.” State v. Keith, 79 Ohio St.3d 514, 535, 684 N.E.2d 47 (1997), citing Cuyler

v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) and State v.

Manross, 40 Ohio St.3d 180, 182, 532 N.E.2d 735 (1988). In essence, an actual conflict

of interest which causes deficient performance results in the prejudice prong of ineffective

assistance being satisfied. The United States Supreme Court addressed this issue in

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) as

follows:
                                                                                -23-


      An error by counsel, even if professionally unreasonable, does not

warrant setting aside the judgment of a criminal proceeding if the error had

no effect on the judgment. Cf. United States v. Morrison, 449 U.S. 361, 364-

365, 101 S.Ct. 665, 667-668, 66 L.Ed.2d 564 (1981). The purpose of the

Sixth Amendment guarantee of counsel is to ensure that a defendant has

the assistance necessary to justify reliance on the outcome of the

proceeding. Accordingly, any deficiencies in counsel’s performance must

be prejudicial to the defense in order to constitute ineffective assistance

under the Constitution.

      In certain Sixth Amendment contexts, prejudice is presumed. Actual

or constructive denial of the assistance of counsel altogether is legally

presumed to result in prejudice. So are various kinds of state interference

with counsel’s assistance. See United States v. Cronic, 466 U.S., at 659,

and n. 25, 104 S.Ct., at 2046-2047, and n. 25. Prejudice in these

circumstances is so likely that case-by-case inquiry into prejudice is not

worth the cost. 466 U.S., at 658, 104 S.Ct., at 2046. Moreover, such

circumstances involve impairments of the Sixth Amendment right that are

easy to identify and, for that reason and because the prosecution is directly

responsible, easy for the government to prevent.

       One type of actual ineffectiveness claim warrants a similar, though

more limited, presumption of prejudice. In Cuyler v. Sullivan, 446 U.S., at

345-350, 100 S.Ct., at 1716-1719, the Court held that prejudice is presumed

when counsel is burdened by an actual conflict of interest. In those
                                                                                            -24-


       circumstances, counsel breaches the duty of loyalty, perhaps the most

       basic of counsel’s duties. Moreover, it is difficult to measure the precise

       effect on the defense of representation corrupted by conflicting interests.

       Given the obligation of counsel to avoid conflicts of interest and the ability

       of trial courts to make early inquiry in certain situations likely to give rise to

       conflicts, see, e.g., Fed.Rule Crim.Proc. 44(c), it is reasonable for the

       criminal justice system to maintain a fairly rigid rule of presumed prejudice

       for conflicts of interest. Even so, the rule is not quite the per se rule of

       prejudice that exists for the Sixth Amendment claims mentioned above.

       Prejudice is presumed only if the defendant demonstrates that counsel

       “actively represented conflicting interests” and that “an actual conflict of

       interest adversely affected his lawyer’s performance.” Cuyler v. Sullivan,

       supra, 446 U.S., at 350, 348, 100 S.Ct., at 1719, 1718 (footnote omitted).

(Emphasis added.) Id. at 691-92.

       {¶ 47} Here Henry makes no effort to show actual prejudice resulting from trial

counsel’s performance in connection with his no-contest pleas. He argues that his

attorney failed to reveal the alleged affair at the time of his plea, that an actual conflict of

interest resulting from the affair could not be waived, and that prejudice was not required

to be shown because it is presumed. We disagree.

       {¶ 48} We refer again to State v. Caulley, as analyzed above. Although the Tenth

District found an actual conflict of interest, it necessarily, consistent with Cuyler v.

Sullivan, still proceeded to consider whether the conflict had adversely affected counsel’s

performance. Caulley at ¶ 22-24. The Cuyler and Caulley requirement that an adverse
                                                                                             -25-


effect on performance must be demonstrated applies to Henry’s petition for post-

conviction relief just as the requirement applied to the motion for a new trial. Because

there is nothing in Henry’s petition and attachments that suggests an adverse effect on

counsel’s performance, Henry has failed to demonstrate prejudice and his petition was

correctly denied without a hearing.

       {¶ 49} We also reiterate the distinction that Bibbs was not Henry’s wife and,

whatever she was to Bibbs, we conclude the record does not demonstrate an automatic

conflict of interest. And if there was a conflict of interest, it did not automatically result in

prejudice. See, e.g., Barentine v. United States, 728 F. Supp. 1241, 1252 (W.D.N.C.),

aff’d, 908 F.2d 968 (4th Cir.1990) (finding “the potential for a conflict of interest” where an

attorney had an affair with his client’s fiancée or girlfriend while representing the client).

       {¶ 50} We further observe that Henry pled no-contest rather than going to trial, and

he cites no evidence to suggest that the alleged affair adversely affected his attorney’s

performance in connection with his plea and sentencing. Therefore, we see no basis for

a finding of presumed prejudice even if we were to accept that an actual conflict of interest

existed. That being so, the trial court did not err in finding that Henry failed to establish

substantive grounds for relief.

       {¶ 51} The third assignment of error is overruled.

       {¶ 52} Finally, Henry argues near the end of his appellate brief that we should

declare his no-contest plea in the drug-trafficking case “involuntary” and that we should

dismiss both of the cases discussed above for “want of jurisdiction.” Henry provides no

factual or legal basis for these requests, and we see none.

                                         Conclusion
                                                                                        -26-


      {¶ 53} For the reasons set forth above, we affirm the trial court’s denial of Henry’s

post-conviction relief petition in Case No. 1999-CR-584 (Clark App. No. 2018-CA-88). We

also affirm the trial court’s denial of Henry’s new-trial motion in Case No. 1999-CR-296

(Clark App. No. 2018-CA-72).

                                        .............



DONOVAN, J. concurs.

FROELICH, J. concurs:

      {¶ 54} I would find that a defendant’s counsel’s undisclosed sexual affair with a

spouse or prospective spouse of the then-represented defendant so adversely affects the

adversarial system, the attorney-client relationship, and the framework in which a trial

proceeds that prejudice need not be shown. However, the record and the trial court’s

findings in this case do not support a conclusion that such a relationship existed, and I

concur with the majority’s opinion.




Copies sent to:

Andrew P. Pickering
Anjuan Henry
Hon. Richard J. O’Neill
