[Cite as State v. Hicks, 2013-Ohio-1904.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 99119



                                       STATE OF OHIO
                                              PLAINTIFF-APPELLEE

                                               vs.


                                        WILLIE HICKS
                                              DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-427689

        BEFORE: Kilbane, J., Jones, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED:                    May 9, 2013
APPELLANT

Willie Hicks, pro se
Inmate #454-930
Trumbull Correctional Institution
P.O. Box 901
Leavittsburg, Ohio 44430-0901

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Kristen L. Sobieski
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

       {¶1} Defendant-appellant, Willie Hicks (“Hicks”), pro se, appeals from the trial

court’s decision denying his petition for postconviction relief. For the reasons set forth

below, we affirm.

       {¶2} In September 2002, Hicks was charged with murder, in violation of R.C.

2903.02, with both one- and three-year firearm specifications. Following his waiver of

his right to a jury trial, Hicks proceeded to a bench trial in October 2003.

       {¶3} The facts of this case were previously set forth by this court in Hicks’s

direct appeal, State v. Hicks, 8th Dist. No. 83981, 2004-Ohio-5223, discretionary appeal

not allowed, 105 Ohio St.3d 1407, 2005-Ohio-279, 821 N.E.2d 1027 (“Hicks I”).

       In the late evening hours of March 16, 2002, Antoine Griffin (“Griffin”)
       and Malcolm Deramus (“Deramus”) happened to meet outside the
       apartment building at 1727 Chapman Avenue in East Cleveland. Deramus
       watched Griffin count his winnings from a gambling game earlier in the
       day. Deramus indicated Griffin won between $350 and $400 from Hicks
       while playing dice. Griffin and Deramus bought a “wet” cigarette from
       Jake Harris (“Harris”) and smoked it outside the building.

       Deramus testified that Hicks called Griffin on his cell phone several times
       trying to resume their dice game and even hung his head out of a window of
       the apartment building to get Griffin to come up and play. Griffin
       eventually entered the building and headed up to apartment number 8 on the
       third floor.

       Francine McCall (“McCall”) explained that she and Leon May (“May”) saw
       Griffin and Deramus outside of the building before they went inside.
       McCall and May went in and saw two other individuals standing in the
       hallway, “Kam” and “Peanut.” McCall and May proceeded upstairs to
apartment number 8 and acquired crack cocaine from Hicks, who was in the
apartment alone. They proceeded back downstairs to apartment number 3
on the first floor to smoke their crack cocaine.

While smoking, McCall heard a loud pop. She looked outside the
apartment door, did not see anything, and went back inside. After two
more pops, McCall and May ran to the door. May went upstairs to
apartment number 8, ran back down and told McCall that Griffin was dead.
 Meanwhile, McCall saw Harris, who looked scared, coming down the
stairs. McCall also testified that she later saw Hicks dangle from a second
story window and drop to the ground below. May ran outside and told
Officer Scott Vargo (“Officer Vargo”) that there was a male shot inside of
1727 Chapman.

Harris testified that when he entered the building he heard the first pop.
“Kam” and “Peanut” were at the door and let him in. Harris testified that he
went up to apartment 8 and saw Griffin dead in the chair and Hicks going
through Griffin’s pockets. Harris ran out of the building and heard two
more shots. Harris was yelling, “They are shooting. They are shooting.”
Harris ran to a friend’s house. Harris testified that a few days later Hicks
called him and asked him if he was the one at the door. Harris claimed he
did not respond but did ask Hicks why he shot Griffin, to which Hicks did
not respond but said he was going to turn himself in.

Hicks went to the East Cleveland police station and made a statement
claiming he was not at 1727 Chapman on the night in question but rather
was with his family and girlfriend at a few parties. Detectives confiscated
all of Hicks’s clothing and sent it to BCI for testing.

The police found Griffin dead in a chair in apartment number 8. His body
was in direct view of the door, and between his feet lay two dice that
revealed “snake eyes.” Officer Vargo testified “It’s double ones. It’s
what you don’t want if you are playing dice, because it means you lose.”
Blood was spattered on boxes and walls to the left of the victim. Three
spent shell casings were also located to the left of the victim. Griffin’s
money from the earlier dice game was missing.

The autopsy revealed that Griffin had three gunshot wounds to the head.
The stippling around the wounds indicated he was shot at close range,
between six and twelve inches. Griffin had 14 rocks of suspected crack
cocaine in his mouth. In addition, he had cocaine, PCP, and marijuana in
his system. Griffin was 27 years of age.
       Clothing from two individuals located at the scene, as well as Hicks’s
       clothing, was sent to BCI for testing. The results indicated that Griffin’s
       blood was not on any of the clothing tested. In addition, the dice, shell
       casings, and a pop can were tested for fingerprints, but nothing of value was
       recovered.

Id. at ¶ 2-10.

       {¶4} The trial court found Hicks guilty as charged and sentenced him to 15 years

to life on the murder charge and a merged, consecutive 3-year term on the firearm

specifications, for a total of 18 years to life in prison.

       {¶5} In December 2003, Hicks filed his direct appeal in Hicks I. In this appeal,

he challenged his conviction, his constitutional rights to a fair trial and effective

assistance of counsel, and the validity of his jury waiver.         We affirmed Hicks’s

conviction and found that his constitutional rights were not violated and that his jury

waiver was valid. Id. at ¶ 21, 27, 31, 39.1 While his direct appeal was pending, Hicks

also filed a petition for postconviction relief with the trial court in August 2004. Hicks

claimed that he was denied due process when his request for disclosure of exculpatory

evidence was denied. Specifically, Hicks claimed that the prosecutor failed “to provide

exculpatory evidence as well as evidence tending to impeach credibility of state’s

eyewitness.” After we rendered our decision in Hicks I, the trial court denied Hicks’s

petition, finding that it was barred by res judicata. The court noted that the sentencing

transcript clearly contained trial counsel’s assertions that he was unaware of the alleged


       1Hicks’s petition to reopen this appeal was denied by this court in State v.
Hicks, 8th Dist. No. 83981 2005-Ohio-1842.
exculpatory evidence contained in the presentence investigation report.          Hicks then

appealed from this order in State v. Hicks, 8th Dist. No. 86334, 2006-Ohio-798,

discretionary appeal not allowed, 109 Ohio St.3d 1482, 2006-Ohio-2466, 847 N.E.2d

1227 (“Hicks II”).

        {¶6} In Hicks II, Hicks argued that the trial court erred in violation of his due

process rights and the right to effective assistance of counsel when it overruled the

petition for postconviction relief. We affirmed the trial court’s judgment, finding that

the alleged error should have been raised on direct appeal. Id. at ¶ 6. We stated:

        The statements contained in the PSI regarding both the councilwoman’s and
        the CRI’s statements were raised during the sentencing phase of trial and,
        therefore, could have been an issue in Hicks’ direct appeal. Trial counsel
        even went so far as to advise the trial court that this exact issue would be
        appealed and requested that the public defender’s office be appointed. (Tr.
        496.) A further review of both the record and Hicks’s postconviction
        petition shows that the statements made by trial counsel at both the
        sentencing hearing and in the affidavit supporting postconviction relief
        contain nearly identical facts, lending further credence to the assertion that
        no new evidence outside the record existed which prevented the issue from
        being raised on direct appeal.

Id. at ¶ 8.

        {¶7} Then in August 2012, Hicks filed, pro se, a second petition for

postconviction relief. In this petition, Hicks claimed that he met the exceptions for a

successive petition as set forth in R.C. 2953.23, because the United States Supreme Court

recognized a new right with respect to the Sixth Amendment right to effective assistance

of counsel and the plea bargaining process. Hicks requested an evidentiary hearing and

argued that he was denied the right to effective assistance of counsel when his initial
defense counsel gave him inadequate advice about his plea, which caused him to reject

the state’s plea offer.    He further argued that his subsequent defense counsel was

ineffective for failing to advise him of the state’s plea offer of seven years in prison. The

trial court denied Hicks’s petition, without a hearing, finding:

       [N]either the defendant’s own affidavit nor the transcript of proceedings in
       this case supports his claims that the representation given to him by either
       [defense counsel] was in any way deficient, let alone that any alleged
       deficiencies prejudiced him in any way. The only formal plea offer that
       appears on the record is the manslaughter/13 years agreed sentenced
       referenced at pp.5, ff. That offer was fully and adequately conveyed to the
       defendant, and was rejected by him.

       {¶8} It is from this order that Hicks appeals, raising the following single

assignment of error for review.



                                    Assignment of Error

       The trial court abused it discretion and erred in denying [Hicks’s] petition
       for postconviction relief without an evidentiary hearing.

       {¶9} In the sole assignment of error, Hicks argues that the trial court abused its

discretion when it failed to hold an evidentiary hearing before denying his petition for

postconviction relief under R.C. 2953.21. Hicks’s argument is unpersuasive.

       {¶10} In his second petition for postconviction relief, Hicks claims that his petition

meets the exceptions set forth in R.C. 2953.23 because the United States Supreme Court

in Lafler v. Cooper, ___ U.S.      , 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), and Missouri

v. Frye,       U.S.       ,132 S.Ct. 1399, 182 L.E.2d 379 (2012), recognized a new right

with respect to the Sixth Amendment right to effective assistance of counsel and the plea
bargaining process. He further claims that had he been afforded effective assistance of

counsel during the plea bargaining phase, he would have accepted the plea and would

have been convicted of a less severe crime.

       {¶11} Under R.C. 2953.23, the trial court may not entertain a successive petition

for postconviction relief unless the petition meets the following two conditions. First,

the petitioner must demonstrate either that he was unavoidably prevented from

discovering the facts upon which he relies in the petition, or that the United States

Supreme Court has, since his last petition, recognized a new federal or state right that

applies retroactively to the petitioner. R.C. 2953.23(A)(1)(a). Second, the petitioner

must show by clear and convincing evidence that a reasonable factfinder would not have

found him guilty but for constitutional error at trial. R.C. 2953.23(A)(1)(b).

       {¶12} The state opposed Hicks’s petition, arguing Hicks failed to demonstrate

either condition under R.C. 2953.23, his petition is barred by res judicata, and defense

counsel was effective. The trial court found that the petition was not untimely and was

not barred by res judicata. The court stated:

       [T]he petition is not untimely, in that the legal basis cited by the defendant
       for his claims is two recent decisions by the United States Supreme Court
       [Lafler and Frye,] both decided March 21, 2012. For the same reason the
       Court must find that the expansion of the right to effective assistance of
       counsel by these two decisions established that defendant’s failure to raise
       the issue on appeal would not constitute res judicata, in that the claims he
       now raises [were] unknown at the time of that appeal or his first petition for
       post-conviction relief.

  (Emphasis sic.)
      {¶13} Due to the recency of Lafler and Frye, we look to federal courts for

guidance. In Hestle v. United States, E.D.Mich. No. 05-40245, 2013 U.S. Dist. LEXIS

37886 (Mar. 19, 2013), the United States District Court for the Eastern District of

Michigan, addressed an analogous situation and found that neither Lafler nor Frye

announced a “newly recognized” right. The Hestle court stated:

      Lafler and Frye held that the Sixth Amendment right to counsel is violated

      when a defendant is subject to a harsher sentence because of his or her

      attorney’s constitutionally deficient advice to reject a plea bargain or as a

      result of his or her attorney’s failure to inform him or her of a plea offer

      from the government.2

(Emphasis sic.)

Moreover,

      [t]he Supreme Court, in granting relief in Lafler and Frye, was rather
      explicit that it was not creating a new right, but applying the existing right
      to effective assistance of counsel and test from Strickland. In both Frye
      and [Lafler], the Supreme Court said: ‘[T]he prosecution and the trial
      courts may adopt some measures to help ensure against late, frivolous, or
      fabricated claims after a later, less advantageous plea offer has been


      2 The  right to effective assistance of counsel during the plea bargaining
process has been recognized for decades. See McMann v. Richardson, 397 U.S. 759,
771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) (during plea negotiations, criminal
defendants “are entitled to the effective assistance of competent counsel”); Hill v.
Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (holding that “the
two-part Strickland v. Washington test applies to challenges to guilty pleas based
on ineffective assistance of counsel”); Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct.
1473, 1480-1481, 176 L.Ed.2d 284 (2010) (“Before deciding whether to plead
guilty, a defendant is entitled to the effective assistance of competent counsel.”)
(Citation omitted.)
       accepted or after a trial leading to conviction’ with resulting harsh
       consequences. Lafler, 132 S.Ct. at 1390; Frye, 132 S.Ct. at 1408-09.

(Emphasis sic.) Hestle.

The Hestle court further noted that

       the majority of the circuits [courts] are in accord that Lafler and Frye do not
       establish a new right for the purposes of § 2255. See Williams v. United
       States, 705 F.3d 293, 2013 WL 238877, *1 (8th Cir. 2013)(“We therefore
       conclude, as have the other circuit courts of appeals that have addressed the
       issue, that neither [Lafler] nor Frye announced a new rule of constitutional
       law.”); Buenrostro v. United States, 697 F.3d 1137, 1140 (9th Cir.2012); In
       re King, 697 F.3d 1189 (5th Cir.2012) (per curiam); Hare v. United States,
       688 F.3d 878, 879-80 (7th Cir.2012); In re Perez, 682 F.3d 930, 932-34
       (11th Cir. 2012); United States v. Lawton, Case No. 12-3240, 2012 U.S.
       App. LEXIS 25936, 2012 WL 6604576 (10th Cir. 2012); see also United
       States v. Ocampo, 2013 U.S. Dist. LEXIS 10666, 2013 WL 317621
       (E.D.Mich. 2013) (“The right recognized by the Supreme Court in [Lafler]
       v. Cooper and Missouri v. Frye did not announce a ‘newly recognized’ right
       made retroactively applicable to cases on collateral review.”).

(Emphasis sic.)

       {¶14} We find these federal court decisions persuasive, and we agree that Lafler

and Frye did not create a new retroactive right as Hicks contends.              If an alleged

constitutional error could have been raised and fully litigated on direct appeal, the issue is

res judicata and may not be litigated in a postconviction proceeding. State v. Perry, 10

Ohio St.2d 175, 179, 226 N.E.2d 104 (1967). It is well settled that the doctrine of res

judicata bars claims that were raised or could have been raised on direct appeal. State v.

Davis, 119 Ohio St.3d 422, 2008-Ohio-4608, 894 N.E.2d 1221. Here, Hicks brought a

direct appeal from his conviction, moved to reopen his appeal, and then appealed the

denial of his first petition for postconviction relief. In each appeal, he failed to raise “the
right of effective assistance of counsel during the plea bargaining phase” argument he

now presents. As a result, the issue is barred by res judicata.

       {¶15} Moreover, even if we were to consider Hicks’s argument, the record

provided by Hicks failed to establish ineffective assistance of counsel. As noted by the

trial court:

       In the case sub judice, * * * the record is devoid of any evidence that there
       ever was any offer of a seven-year plea [as Hicks contends], let alone a
       “formal” offer of such.

       The only reference cited by defendant appears in the trial transcript, at page
       441, as follows:

               [DEFENSE COUNSEL]: * * * The defendant is, in fact, as
               we know, presumed innocent. The defendant has this
               presumption with him at all times. Right now he is presumed
               innocent. He has not pled guilty. Eighteen months ago,
               when he appeared for his arraignment, he said he didn’t do
               this. He pled guilty — pled not guilty at that arraignment.
               He’s never pled guilty. I believe he was at one time offered
               seven years for this offense —

               [STATE]: Objection.

               THE COURT: That’s sustained.

       In other words, the sole reference relied upon by the defendant to support
       his claim of an offer of a seven-year sentence is a statement made by
       counsel, during the course of his closing argument, as to something he
       believed had been offered — a reference to which the state’s objection was
       sustained by the Court. Even if the state’s objection had not been
       sustained, the statement made by counsel that he “believed” a seven-year
       offer had been made falls short of evidence that such offer ever was made.
       ***

       [T]he Court must note that the defendant is now claiming that he did not
       understand the consequences of the plea offer or of his rights at trial;
       inasmuch as that offer was referenced at length on the record, and the
       defendant was given a full opportunity to express his questions and/or
       concerns at that time, his failure to do so suggests that this is merely a
       recent concoction, and in no way an expression of any issues he may have
       had at the time.

 (Emphasis sic.)

       {¶16} While we disagree with the trial court’s analysis, in so far as it determined

Hicks relied on a new right to relief that did not exist at the time of his first petition, we

nonetheless find that the trial court ultimately reached the proper conclusion by denying

Hicks’s petition.

       {¶17} Thus, the sole assignment of error is overruled.

       {¶18} Judgment 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.




MARY EILEEN KILBANE, JUDGE

LARRY A. JONES, SR., P.J., and
TIM McCORMACK, J., CONCUR
