[Cite as State v. Miller, 2020-Ohio-871.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                       GEAUGA COUNTY, OHIO


STATE OF OHIO,                                   :      OPINION

                 Plaintiff-Appellee,             :
                                                        CASE NO. 2019-G-0226
        - vs -                                   :

RAYMOND A. MILLER,                               :

                 Defendant-Appellant.            :


Civil Appeal from the Geauga County Court of Common Pleas.
Case No. 2017 C 000001.

Judgment: Affirmed.


James R. Flaiz, Geauga County Prosecutor, and Nicholas A. Burling, Assistant
Prosecuting Attorney, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH
44024 (For Plaintiff-Appellee).

Raymond A. Miller, pro se, PID: A702-482, Northeast Ohio Correctional Center, 2240
Hubbard Road, Youngstown, OH 44505 (Defendant-Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, Raymond A. Miller, appeals from an entry of the Geauga

County Court of Common Pleas, dismissing his petition for postconviction relief without

a hearing. Miller asserts one assignment of error for our review:

        {¶2}     “The trial court abused its discretion in dismissing appellant’s post-

conviction relief petition pursuant to R.C. §2953.21 without a hearing where there were

sufficient operative facts alleged that would warrant a hearing.”
        {¶3}   R.C. 2953.21, Ohio’s postconviction relief statute, provides in pertinent

part:

               (A)(1)(a) Any person who has been convicted of a criminal offense
               * * * and who claims that there was such a denial or infringement of
               the person’s rights as to render the judgment void or voidable under
               the Ohio Constitution or the Constitution of the United States * * *
               may file a petition in the court that imposed sentence, stating the
               grounds for relief relied upon, and asking the court to vacate or set
               aside the judgment or sentence or to grant other appropriate relief.
               The petitioner may file a supporting affidavit and other documentary
               evidence in support of the claim for relief. * * *

               (D) The court shall consider a petition that is timely filed under
               division (A)(2) of this section even if a direct appeal of the judgment
               is pending. Before granting a hearing on a petition filed under
               division (A) of this section, the court shall determine whether there
               are substantive grounds for relief. In making such a determination,
               the court shall consider, in addition to the petition, the supporting
               affidavits, and the documentary evidence, all the files and records
               pertaining to the proceedings against the petitioner[.] * * * If the
               court dismisses the petition, it shall make and file findings of fact
               and conclusions of law with respect to such dismissal. * * *

               (F) Unless the petition and the files and records of the case show
               the petitioner is not entitled to relief, the court shall proceed to a
               prompt hearing on the issues even if a direct appeal of the case is
               pending.

        {¶4}   Miller filed a pro se “Petition to Vacate or Set Aside Judgment of

Conviction or Sentence” pursuant to R.C. 2953.21 and two supplements, to which the

state of Ohio responded. Miller set forth two claims for relief:

               [1.] Mr. Miller’s Conviction and Sentence are void and/or voidable.
               Mr. Miller was denied his Constitutional Rights to Effective
               Assistance of Counsel when defense counsel coerced Mr. Miller
               into entering a guilty plea with the continuous threats of Miller’s
               wife/co-defendant testifying against Miller. This is a violation of Mr.
               Miller’s Sixth Amendment, U.S. Constitution; Section 10, Article 1,
               Ohio Constitution, right to effective assistance of counsel.

               [2.] Mr. Miller was denied his constitutional rights to effective
               assistance of counsel as defense counsel failed to investigate



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               and/or challenge the state’s case. Sixth Amendment, U.S.
               Constitution; Section 10, Article 1, Ohio Constitution; Compulsory
               Process and his Fifth and Fourteenth Amendment, U.S.
               Constitution; Section 16, Article 1, Ohio Constitution; Due Process.

       {¶5}   The trial court initially denied the petition on January 10, 2019, concluding

it did not have jurisdiction to consider Miller’s petition and that his arguments were

barred by the doctrine of res judicata. This decision was affirmed in part and reversed

in part by this court in State v. Miller, 11th Dist. Geauga No. 2019-G-0189, 2019-Ohio-

2974. The trial court did not err in concluding that Miller’s second claim for relief was

barred by the doctrine of res judicata. Id. at ¶14. It was error, however, for the trial

court to apply the doctrine to Miller’s first claim for relief. Although Miller had raised the

argument in his direct appeal, this court had explicitly held it could not be addressed

therein as it relied on matters outside the trial court record. Id. at ¶15, citing State v.

Miller, 11th Dist. Geauga No. 2017-G-0136, 2018-Ohio-4379, ¶18.

       {¶6}   The matter was remanded for the trial court to consider whether Miller’s

petition set forth substantive grounds for relief that would warrant a hearing on his first

claim for relief, consistent with R.C. 2953.21(D) and (F). Id. at ¶18. In his first claim for

relief, Miller alleged he received ineffective assistance of counsel “when defense

counsel coerced Mr. Miller into entering a guilty plea with the continuous threats of

Miller’s wife/co-defendant testifying against Miller.”

       {¶7}   On remand, the trial court again dismissed Miller’s petition without a

hearing on September 3, 2019. The trial court held that Miller’s petition did not set forth

substantive grounds for relief that would warrant a hearing based on the following

findings of fact and conclusions of law:




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1. Defendant alleges that his defense counsel coerced him into
   entering a guilty plea with threats of Defendant’s wife/co-
   defendant testifying against Defendant.

2. On Page 6 of Defendant’s Petition to Vacate or Set Aside
   Judgment of Conviction or Sentence, Defendant states “Miller
   knew of the spousal privilege protecting his wife from being
   forced to testify against him.”

3. While Defendant’s case was pending, prior to Defendant’s plea,
   this Court granted Defendant the opportunity to communicate
   with his wife by mail, and permitted Defendant and his wife to
   have an “in person” conversation at the courthouse following a
   pretrial. On Page 5 of Defendant’s Petition to Vacate or Set
   Aside Judgment of Conviction or Sentence, Defendant states
   that during these visits and through the correspondence, it was
   made clear that Mrs. Miller was not testifying against her
   husband.

4. According to Defendant’s affidavit, prior to Defendant’s plea,
   Defendant’s attorney apologized to Defendant “…for saying my
   wife is testifying. He stated he was wrong. She is in fact not
   testifying.”

5. In the courtroom, during the change of plea hearing, before the
   Court accepted Defendant’s change of plea, the Court and
   Defendant engaged in the following colloquy:

      The Court:    Thank you. All right. I may have lost track of
                    where I left off.     But has your attorney
                    answered all of your questions?

      Mr. Miller:   Yes, ma’am

      The Court:    And are you satisfied that you have been well
                    represented?

      Mr. Miller:   Yes, Ma’am

                    ***

      The Court:    Besides what’s contained in this agreement,
                    has anyone made any threats, promises or




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                    other inducements to you in order to get you to
                    enter into this agreement?

      Mr. Miller:   No, ma’am.

                    ***

      The Court:    Okay. Do you have any questions, or do you
                    need more time to talk to your attorney at this
                    point?

      Mr. Miller:   No, ma’am.

      Plea T. pp. 6-7.

6. Any error committed by Defendant’s attorney in stating that
   Defendant’s wife was going to testify against Defendant at trial
   was corrected when Defendant’s attorney apologized and stated
   that she was not testifying. This was corrected, by Defendant’s
   own account, prior to the change of plea hearing.

7. There was no coercion at the time Defendant changed his plea.

8. Defendant’s counsel’s mistake in informing Defendant that his
   wife was going to testify against him, then apologizing to
   Defendant and telling him that she was not going to testify prior
   to Defendant’s change of plea hearing, does not fall below an
   objective standard of reasonableness as required by Strickland
   v. Washington, 466 U.S. 668 (1984).

9. Further, Defendant readily admits that his wife told him both in
   person and in writing that she was not going to testify against
   him, and his attorney corrected his error and confirmed that
   Defendant’s wife was not going to testify against him prior to
   Defendant changing his plea. Given that Defendant voluntarily
   changed his plea after knowing from all sources that his wife
   was not going to testify against him, there is no evidence that,
   but for counsel’s error “… the result of the proceeding would
   have been different.” Strickland at 694.

10. Defendant was not coerced into entering a guilty plea based on
    the threat that his wife would testify against him.




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              11. Defendant’s post-conviction petition does not set forth
                  substantive grounds for relief that would warrant a hearing,
                  consistent with R.C. 2953.21(D) and (F).

              12. Defendant’s petition for post-trial relief is dismissed.

       {¶8}   Our standard of review is whether the trial court abused its discretion in

dismissing the petition without a hearing. State v. Miller, 11th Dist. Lake No. 2018-L-

055, 2018-Ohio-5192, ¶12-13, citing State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-

6679, ¶51, citing State v. Calhoun, 86 Ohio St.3d 279 (1999), paragraph two of the

syllabus.

       {¶9}   “In a petition for post-conviction relief, which asserts ineffective assistance

of counsel, the petitioner bears the initial burden to submit evidentiary documents

containing sufficient operative facts to demonstrate the lack of competent counsel and

that the defense was prejudiced by counsel’s ineffectiveness.” State v. Jackson, 64

Ohio St.2d 107 (1980), syllabus.       “For purposes of determining whether there are

substantive grounds for postconviction relief that would warrant a hearing, it is generally

accepted that affidavits presented in support of the petition should be accepted as true.”

State v. Pierce, 127 Ohio App.3d 578, 586 (11th Dist.1998). The “statute does not

expressly mandate a hearing for every post-conviction relief petition and, therefore, a

hearing is not automatically required.” Jackson, supra, at 110.

       {¶10} Upon review, we cannot conclude the trial court abused its discretion by

not holding a hearing on Miller’s petition. Even accepting the affidavits as true, the

evidentiary documents submitted by Miller do not contain sufficient operative facts to

demonstrate ineffective assistance of counsel under the two-pronged test set forth in

Strickland v. Washington, 466 U.S. 668 (1984). In other words, Miller has not alleged




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sufficient operative facts to demonstrate that he would not have pled guilty but for

defense counsel’s initial incorrect statement and subsequent correction/apology—all of

which occurred prior to Miller’s plea of guilty and all of which was independently known

to Miller as a result of conversations with his wife.

       {¶11} Miller’s sole assignment of error is without merit.

       {¶12} The judgment of the Geauga County Court of Common Pleas is affirmed.



CYNTHIA WESTCOTT RICE, J.,

THOMAS R. WRIGHT, J.,

concur.




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