[Cite as State v. Hull, 2019-Ohio-23.]


                                         IN THE COURT OF APPEALS

                                  ELEVENTH APPELLATE DISTRICT

                                           LAKE COUNTY, OHIO


 STATE OF OHIO,                                      :      OPINION

                    Plaintiff-Appellee,              :
                                                            CASE NO. 2018-L-050
          - vs -                                     :

 FLOYD J. HULL, SR.,                                 :

                    Defendant-Appellant.             :


 Civil Appeal from the Lake County Court of Common Pleas, Case No. 2015 CR 000387.

 Judgment: Reversed and remanded.


 Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant
 Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
 Painesville, OH 44077 (For Plaintiff-Appellee).

 Gary Michael Goins, 13609 Shaker Boulevard, Suite 3-A, Cleveland, OH 44120 (For
 Defendant-Appellant).



THOMAS R. WRIGHT, P.J.

        {¶1}       Appellant, Floyd J. Hull, Sr., appeals the denial of his petition for

postconviction relief. We reverse and remand for further proceedings.

        {¶2}       Hull was indicted on ten drug offenses following a traffic stop. Four days

before trial, his counsel filed a motion to suppress all evidence seized from his vehicle

and all statements made by Hull. He argued that his stop was illegal because the officer

lacked probable cause to make the stop and that he was improperly induced into

confessing by investigating officers in exchange for leniency. The court overruled his
suppression motion as untimely, and Hull pleaded guilty to counts two and nine and the

attendant forfeiture specifications. The eight remaining charges were dismissed. He

challenged his sentence in his direct appeal, and we affirmed. State v. Hull, 11th Dist.

Lake No. 2016-L-035, 2017-Ohio-157, 77 N.E.3d 484, appeal not allowed, 149 Ohio St.3d

1465, 2017-Ohio-5699, 77 N.E.3d 988.

       {¶3}   The trial court denied his petition for postconviction relief without a hearing

finding res judicata bars relief. Hull raises two assigned errors:

       {¶4}   “[1.] The trial court abused its discretion in its application of the doctrine of

res judicata to Hull’s timely filed petition for postconviction relief pursuant to R.C. 2953.21

thus violating Hull’s rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to

the United States Constitution and Article 1, Section 1 and 14 of the Ohio Constitution.

       {¶5}   “[2.] The trial court erred in denying Hull’s postconviction relief petition

where he presented sufficient evidence de hors the record to merit an evidentiary

hearing.”

       {¶6}   R.C. 2953.21, Petition for postconviction relief; discovery, states in part:

       {¶7}   “(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.

       {¶8}   “* * *




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       {¶9}   “(D) * * * 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, including, but not limited to, the indictment, the

court's journal entries, the journalized records of the clerk of the court, and the court

reporter's transcript. * * * If the court dismisses the petition, it shall make and file findings

of fact and conclusions of law with respect to such dismissal.

       {¶10} “(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.” (Emphasis added).

       {¶11} We review a court’s denial of a postconviction petition for an abuse of

discretion. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶48.

       {¶12} “Absent a clear abuse of discretion, a reviewing court will not reverse the

judgment of the trial court. Birath v. Birath, 53 Ohio App.3d 31, 39, 558 N.E.2d 63 (10th

Dist.1988). ‘* * * the term “abuse of discretion” is one of art, connoting judgment exercised

by a court, which does not comport with reason or the record.’ State v. Underwood, 11th

Dist. No. 2008-L-113, 2009-Ohio-2089, 2009 WL 1177050, ¶30, citing State v.

Ferranto, 112 Ohio St. 667, 676–678, 148 N.E. 362 (1925). * * * ‘the mere fact that the

reviewing court would have reached a different result is not enough, without more, to find

error.” [State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900,] ¶67.” Ivancic

v. Enos, 11th Dist. Lake No. 2011-L-050, 2012-Ohio-3639, 978 N.E.2d 927, ¶70.

       {¶13} Hull asserts in his petition that he was denied the effective assistance of

counsel guaranteed by the Sixth Amendment.

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       {¶14} The petitioner has the burden to prove the denial of effective trial counsel.

Vaughn v. Maxwell, 2 Ohio St.2d 299, 31 O.O.2d 567, 209 N.E.2d 164 (1965). In order

to establish the denial of effective assistance of counsel, a defendant must first show that

his attorney’s performance was deficient. “This requires showing that counsel made

errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment. Second, the defendant must show that the deficient

performance prejudiced the defense. This requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” State v.

Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999), quoting Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

       {¶15} Hull argues three instances of ineffective assistance. He first claims trial

counsel operated under an incorrect premise that his confession was admissible and

would be introduced at trial, and therefore, encouraged Hull to plead guilty. Second, Hull

asserts his attorney was deficient in failing to timely file a motion to suppress, and that

had it been timely, it would have been granted. And third, Hull claims counsel was

deficient for failing to argue that the police lacked authority to initiate the traffic stop

because they were outside their jurisdiction, which led to the search and his arrest. His

arguments hinge on a successful motion to suppress.

       {¶16} Attached to Hull’s petition are several affidavits, including his own, in which

several individuals aver that they were present during Hull’s meetings with his trial

attorney and heard his attorney explain that Hull had to accept the state’s plea offer

because his detailed confession was too damning. Hull also attaches his appellate

counsel’s affidavit, attorney G. Michael Goins, who attests that the prosecutor withdrew

the deal that the arresting officers made with Hull and that thereafter, his trial counsel told

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him that he was in a no-win situation because the confession made it impossible to defend

the charges. Goins also attests that because of the withdrawn “deal,” Hull sought his trial

counsel to move to suppress all evidence, including his confession based on the illegality

of the traffic stop.

       {¶17} In denying his postconviction petition and his petition to vacate his judgment

and sentence, the trial court held in part,

       {¶18} “the Petitioner was represented by new counsel on his direct appeal. * * *

Further, while the Petitioner’s direct appeal did not specifically raise the issue of

ineffective assistance of trial counsel, the appeal did raise the issues which he relies on

as the basis for his claim that he was provided ineffective assistance of counsel, i.e., that

he was coerced into entering a guilty plea because his incriminating confession to the

arresting police officer could be used against him at trial * * * and that his attorney failed

to timely file a motion to suppress. * * * The Eleventh District Court of Appeals specifically

addressed these issues. * * * Thus, the Petitioner could have raised the issue of the

effectiveness of his trial counsel based on these reasons * * *. Accordingly, res judicata

precludes him from raising this issue now * * *.”

       {¶19} Res judicata precludes a party from asserting a ground for relief that could

have previously been presented between the parties in the prior action. State ex rel. Love

v. O'Donnell, 150 Ohio St.3d 378, 2017-Ohio-5659, 81 N.E.3d 1250, ¶6. “[U]nder the

doctrine of res judicata, an existing final judgment or decree binding the parties is

conclusive as to all claims that were or could have been litigated in a first lawsuit.” Id.

       {¶20} However, res judicata does not bar a postconviction petition if the petitioner

can show that a determination of the ineffective assistance of counsel claim requires

reference to evidence outside the record on direct appeal because Ohio law prohibits the

                                              5
addition of new evidence to the trial record on direct appeal. Hanna v. Ishee, 694 F.3d

596, 614 (6th Cir.2012), citing State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500,

(1978). Even when an appellant has new counsel on direct appeal, res judicata does not

apply when the issue cannot be determined without evidence outside the record. State

v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169, (1982) syllabus.

       {¶21} Hull asserted in his second assigned error in his direct appeal that “the trial

court should have imposed the minimum possible prison terms in light the fact that he

was ‘forced’ to enter a plea because of his coerced confession in exchange for promised

leniency. Hull argues that his plea was involuntary because his confession was unlawfully

induced by a promised benefit, which was later revoked.” State v. Hull, 11th Dist. Lake

No. 2016-L-035, 2017-Ohio-157, 77 N.E.3d 484, ¶44, appeal not allowed, 149 Ohio St.3d

1465, 2017-Ohio-5699, 77 N.E.3d 988. In analyzing this argument, we mentioned issues

leading to his claims of ineffective assistance of counsel now before us:

       {¶22} “Specifically, Hull claims he confessed to the charges against him as part

of an agreement with detectives in exchange for leniency and the possibility of getting

probation instead of prison time. Hull avers that he confessed, provided numerous leads

and information about other individuals' illegal activities, and agreed to work as a

confidential informant in exchange for leniency. However, Hull claims that the officers

revoked the deal when they learned that he had a preexisting rape conviction. Thus, Hull

did not make a favorable witness and was not a desirable informant.

       {¶23} “* * *

       {¶24} “The exchange between the court and Hull’s counsel reveals that Hull was

aware of potentially viable suppression issues, but did not timely file a motion to suppress

in spite of the opportunity. Moreover, Hull would have learned that his alleged agreement

                                             6
for leniency with the police was a nonstarter had either Hull or his counsel pursued the

matter by contacting the drug task force. Had they pursued the agreement, they would

have timely learned that Hull was not a desirable informant and filed a suppression motion

before the eve of trial. Notwithstanding, Hull did not even attempt to move to continue

the trial in order to pursue the merits of his suppression motion.

       {¶25} “Based on the foregoing, Hull knowingly, intelligently, and voluntarily

pleaded guilty to two of the ten drug trafficking charges against him.” Id. at ¶44-65.

       {¶26} Although there was some discussion before us in Hull’s direct appeal about

the timeliness of his motion to suppress and the basis for the motion, our analysis of the

same was limited to the context before us, i.e., whether his plea was knowingly,

intelligently, and voluntarily made, not whether suppression was warranted. Id. at ¶45.

And assuming for the sake of argument only that the record previously before us

established that counsel’s untimely filing of the motion constitutes a deficiency sufficient

to support a claim for ineffective assistance, this only satisfies one prong of the Strickland

test. This does not, however, touch on the second prong, whether this alleged deficiency

prejudiced Hull’s defense depriving him of a fair trial. Strickland v. Washington, 466 U.S.

668, 687, 104 S. Ct. 20152 (1984).

       {¶27} Hull’s    arguments     alleging       prejudicial   effect,   which   underlie   his

postconviction petition, depend on facts outside the record. Hull’s first and second

ineffective assistance claims turn on facts, not in evidence, to establish that his confession

should have been suppressed. And his third claim is reliant on evidence showing that the

location of his traffic stop was outside of the officer’s jurisdiction, and that no other

exceptions applied, making the stop lawful. Without evidence dehors the record, Hull




                                                7
cannot successfully present these arguments, and as such, res judicata does not bar

these postconviction claims.

        {¶28} Moreover, we disagree with the dissent’s conclusion that Hull waived these

issues via his guilty plea. A defendant who pleads guilty may attack the voluntary and

knowing character of his guilty plea by showing that he was incompetently advised by his

attorney to plead guilty. McMann v. Richardson, 397 U.S. 759, 772, 90 S.Ct. 1441 (1970)

(holding an appellant may show that plea was not knowing or voluntary based on

counsel’s error in advising client about admissibility of confession); State v. Spates, 64

Ohio St.3d 269, 272, 595 N.E.2d 351 (1992). In fact, the U.S. Supreme Court has

expressly held that “the two-part Strickland v. Washington test applies to challenges to

guilty pleas based on ineffective assistance of counsel.” (Emphasis added.) Hill v.

Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985) (explaining that the

“showing of ‘prejudice’ from defendants who seek to challenge the validity of their guilty

pleas on the ground of ineffective assistance of counsel will serve the fundamental

interest in the finality of guilty pleas * * *.”).

        {¶29} Accordingly, his first assignment has merit.

        {¶30} Hull’s second assignment claims he is entitled to a hearing. We disagree.

Instead, that determination remains for the trial court on remand.

        {¶31} “[P]ostconviction relief petitions are subject to dismissal without a hearing if

the petition and the supporting evidentiary documents do not contain sufficient operative

facts which, if true, would establish substantive grounds for relief.” State v. Apanovitch,

113 Ohio App.3d 591, 597, 681 N.E.2d 961 (8th Dist.1996), citing State v. Sowell, 73

Ohio App.3d 672, 682, 598 N.E.2d 136 (1991); State v. Calhoun, 86 Ohio St.3d 279, 714

N.E.2d 905 (1999).

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       {¶32} In Calhoun, the Supreme Court set forth in detail a trial court’s responsibility

when considering whether to hold a hearing in this context:

       {¶33} “[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 their

credibility in determining whether to accept the affidavits as true statements of fact. To

hold otherwise would require a hearing for every postconviction relief petition. Because

the statute clearly calls for discretion in determining whether to grant a hearing, accepting

all supporting affidavits as true is certainly not what the statute intended. ‘[I]f we would

allow any open-ended allegation or conclusory statement concerning competency of

counsel without a further showing of prejudice to the defendant to automatically mandate

a hearing, division (D) of R.C. 2953.21 would be effectively negated and useless.’ * * *

       {¶34} “Unlike     the    summary       judgment        procedure      in        civil   cases,

in postconviction relief proceedings, the trial court has presumably been presented with

evidence sufficient to support the original entry of conviction, or with a recitation of facts

attendant to an entry of a guilty or no-contest plea. The trial court may, under appropriate

circumstances in postconviction relief proceedings, deem affidavit testimony to lack

credibility without first observing or examining the affiant. That conclusion is supported

by common sense, the interests of eliminating delay and unnecessary expense, and

furthering the expeditious administration of justice. * * *

       {¶35} “An affidavit, being by definition a statement that the affiant has sworn to be

truthful, and made under penalty of perjury, should not lightly be deemed false. However,

not all affidavits accompanying a postconviction relief petition demonstrate entitlement to

an evidentiary hearing, even assuming the truthfulness of their contents. Thus, where a

petitioner   relies    upon    affidavit   testimony    as     the   basis        of      entitlement

                                              9
to postconviction relief, and the information in the affidavit, even if true, does not rise to

the level of demonstrating a constitutional violation, then the actual truth or falsity of the

affidavit is inconsequential. See, generally, State v. Perry (1967), 10 Ohio St.2d 175, 39

O.O.2d 189, 226 N.E.2d 104.

       {¶36} “In determining the credibility of supporting affidavits in postconviction relief

proceedings, * * * a trial court * * * should consider all relevant factors. * * * Among those

factors are (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. * * *

       {¶37} “Depending on the entire record, one or more of these or other factors may

be sufficient to justify the conclusion that an affidavit asserting information outside the

record lacks credibility. Such a decision should be within the discretion of the trial court.

A trial court that discounts the credibility of sworn affidavits should include an explanation

of its basis for doing so in its findings of fact and conclusions of law, in order that

meaningful appellate review may occur.” Id. at 284-285.

       {¶38} Accordingly, Hull is not entitled to a hearing because he submitted affidavits

in support of his petition. Instead, the trial court must determine whether the petition, the

record, and the supporting evidentiary documents contain sufficient operative facts which,

                                             10
if true, would establish substantive grounds for relief consistent with the direction set forth

in Calhoun. And if it so finds, then a hearing is required under R.C. 2953.21(D). If,

however, it does not find a hearing is warranted and dismisses the petition, then it must

issue findings of fact and conclusion of law sufficient to enable meaningful appellate

review. R.C. 2953.21(D); Calhoun, supra, at 291-292.

       {¶39} Hull’s second assigned error lacks merit.

       {¶40} The trial court’s decision is reversed and remanded.



COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part with a
Concurring/Dissenting Opinion,

DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.


                                     ____________________



COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part with a
Concurring/Dissenting Opinion.

       {¶41} I concur with the learned majority on assignment of error one. I dissent as

to the reasoning regarding assignment of error two as there is a plethora of evidence in

support of his motion. I would remand for the trial court to hold a hearing.


                                     ____________________




DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.

       {¶42} I respectfully dissent and would affirm the decision of the lower court. The

court correctly dismissed Hull’s Petition for Post-Conviction Relief based on res judicata,

albeit not because “Petitioner could have raised the issue of the effectiveness of his trial



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counsel * * * in his [direct] appeal.” Rather, a “defendant who * * * voluntarily, knowingly,

and intelligently enters a plea of guilty with assistance of counsel ‘may not thereafter raise

independent claims relating to the deprivation of constitutional rights that occurred prior

to the entry of the guilty plea,’” including claims that incriminating statements should have

been suppressed and “that defense counsel provided constitutionally ineffective

assistance.” (Citation omitted.) State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-

1594, 63 N.E.3d 93, ¶ 55 and 53. The fact that these claims may depend on evidence

“de hors the record” is not material.

              [A] guilty plea represents a break in the chain of events which has
              preceded it in the criminal process. When a criminal defendant has
              solemnly admitted in open court that he is in fact guilty of the
              offense with which he is charged, he may not thereafter raise
              independent claims relating to the deprivation of constitutional rights
              that occurred prior to the entry of the guilty plea. He may only attack
              the voluntary and intelligent character of the guilty plea by showing
              that the advice he received from counsel was not within the
              standards set forth in McMann [i.e., a defendant “must demonstrate
              gross error on the part of counsel when he recommended that the
              defendant plead guilty instead of going to trial.” McMann v.
              Richardson, 397 U.S. 759, 772, 90 S.Ct. 1441, 25 L.Ed.2d 673
              (1970).]

(Emphasis added.) State v. Spates, 64 Ohio St.3d 269, 272, 595 N.E.2d 351 (1992),

quoting Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).

       {¶43} In the present case, the issue of whether Hull’s “coerced” confession was

admissible was raised in a Motion to Suppress filed prior to the entry of his guilty pleas.

The trial court denied the Motion as untimely. With full knowledge that trial counsel had

failed to file a timely Motion to Suppress, Hull entered his plea of guilty after affirming to

the court that, by doing so, he was “giving up or waiving any right [he had] to appeal a




                                             12
guilty finding [the] court will enter if [his] plea is accepted as well as any other issues that

[he] could have raised or brought to [the] court’s attention up to this point.”

       {¶44} On direct appeal, this court affirmed that, “[b]y entering guilty pleas, Hull

waived his right to challenge the constitutionality of his stop, the search of his vehicle,

and his confession on appeal.” State v. Hull, 2017-Ohio-157, 77 N.E.3d 484, ¶ 67 (11th

Dist.). This court likewise affirmed that Hull’s plea was knowingly, intelligently, and

voluntarily entered, despite the fact “that Hull was aware of potentially viable suppression

issues, but did not timely file a motion to suppress in spite of the opportunity.” Id. at ¶ 64.

       {¶45} Given the foregoing, it is irrelevant that Hull has discovered evidence de

hors the record that there were additional suppression arguments that could have been

raised (the merit of which is far from being established). Hull knew that his Motion to

Suppress had been denied as untimely and nonetheless admitted his guilt to certain

crimes as part of a plea agreement with the State. He has waived his right to raise these

issues again in a proceeding for post-conviction relief.

       {¶46} Accordingly, for the foregoing reasons, I respectfully dissent.




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