[Cite as State v. Wilson, 2012-Ohio-4065.]




          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                            JOURNAL ENTRY AND OPINION
                                     No. 98033



                                     STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                  ANDRE L. WILSON
                                                       DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                   Civil Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-535921

                BEFORE:              Blackmon, A.J., Boyle, J., and Jones, J.
          RELEASED AND JOURNALIZED:   September 6, 2012


ATTORNEY FOR APPELLANT

Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, Ohio 44113-2098



ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Mary H. McGrath
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




PATRICIA ANN BLACKMON, A.J.:
      {¶1} Appellant Andre L. Wilson (“Wilson”) appeals the trial court’s

denial of his petition for postconviction relief and assigns the following three

errors for our review:

      I. Defendant was denied due process of law when the
      court dismissed the postconviction petition without a
      hearing where defendant asserted substantive ground for
      relief.

      II. Defendant was denied due process of law when the
      court summarily discounted evidence of support of a
      petition for postconviction relief.

      III.   Defendant was denied due process of law when the

      court failed to give any credence to petitioner’s affidavit

      and the statements of two observers.

      {¶2} Having reviewed the record and pertinent law, we affirm the trial

court’s decision. The apposite facts follow.

                                    Facts

      {¶3} On December 23, 2010, a jury convicted Wilson of murder,

aggravated murder, and kidnapping, along with one and three-year firearm

specifications.   The trial court separately convicted Wilson of having a

weapon while under disability.       On January 7, 2011, the trial court

sentenced Wilson to an aggregate prison term of 33 years to life in prison.

      {¶4} Wilson filed a direct appeal from his convictions.       This court

affirmed the convictions in State v. Wilson, 8th Dist. No. 96380,
2012-Ohio-102. While the appeal was pending, Wilson filed a petition for

postconviction relief in which he raised the issue that several of the jurors

were sleeping during the trial. Attached to the petition was an affidavit by

Wilson and two letters from people who attended the trial. The trial court

denied the petition noting that Wilson had raised a similar issue in his direct

appeal.   The court also concluded that Wilson’s affidavit attached to his

petition was self-serving and refused to consider the letters from the two

observers of the trial because they were unsworn.

                    Petition for Postconviction Relief

      {¶5} We will address Wilson’s three assigned errors together because

they all concern the trial court’s failure to conduct an evidentiary hearing and

failure to consider Wilson’s evidence attached to his petition.

      {¶6} The trial court may summarily dismiss a postconviction petition

without a hearing where the petitioner fails to present supporting evidentiary

documents sufficient to demonstrate the existence of operative facts

supporting the petitioner’s entitlement to relief. State v. Jackson, 64 Ohio

St.2d 107, 413 N.E.2d 819 (1980), at syllabus; State v. Williams, 162 Ohio

App.3d 55, 2005-Ohio-3366, 832 N.E.2d 783, ¶ 23 (6th Dist.).

      {¶7} Although a trial court should give deference to affidavits filed in

support of a postconviction relief petition, it may exercise its discretion when
assessing the credibility of the affidavits. State v. Calhoun, 86 Ohio St.3d

279, 1999-Ohio-102, 714 N.E.2d 905, paragraph one of the syllabus. A trial

court may discount self-serving affidavits from the petitioner or his family

members. State v. Moore, 99 Ohio App.3d 748, 755, 651 N.E.2d 1319 (1st

Dist.1994). An affidavit is self-serving if it is from a party that is interested

in the petitioner’s success. Id.

      {¶8} The trial court did not abuse its discretion by finding that

Wilson’s affidavit was self-serving.      The court also did not abuse its

discretion by refusing to consider the letters from the two observers.

Unsworn letters are not admissible and should not be considered as part of a

petition for postconviction relief.     State v. Patterson, 10th Dist. No.

98AP-1369, 1999 Ohio App. LEXIS 4389 (Sept. 23, 1999); State v. Vincent, 4th

Dist. No. 92CA1894, 1993 Ohio App. LEXIS 489 (Jan. 28, 1993). Moreover,

the letters do not show how these people knew Wilson. One of the letters

was written by Roxanne Oliver, who was listed as a witness on Wilson’s

witness list; therefore, it is likely she has an interest in the outcome of the

petition. See State v. Hough, 8th Dist. No. 95953, 2011-Ohio-3690 (letters

written by those who personally know the defendant were deemed

self-serving). Wilson has not indicated whether the writer of the other letter

personally knew him.
[Cite as State v. Wilson, 2012-Ohio-4065.]
        {¶9} Moreover, even if the affidavit and letters were considered, they

did not contain operative facts requiring a hearing. We have no transcript

before us, however, in reviewing his direct appeal, this court noted that there

was no evidence that jurors were sleeping at the trial and that the assertion

that jurors were sleeping was brought up by Wilson, not his attorneys, at his

sentencing hearing, after the jury had been excused.             An objection to a

sleeping juror must be made at trial because the trial court has significant

discretion in how it resolves an incident with a sleeping juror.           State v.

Sanders, 92 Ohio St.3d 245, 253, 2001-Ohio-189, 790 N.E.2d 90. Once the

jury is excused, it is too late to rectify the error.

        {¶10}              Even if Wilson contends his attorney was ineffective for

failing to object to the sleeping jurors, Wilson must show he was prejudiced

by the attorney’s failure object.            State v. Guyton, 8th Dist. No. 88423,

2007-Ohio-2513 (defendant failed to show how he was prejudiced by counsel’s

failure to object to the sleeping juror). In order to prevail on a claim for

ineffective assistance of counsel, the defendant must show (1) that counsel’s

performance was deficient, and (2) that the deficient performance prejudiced

the defense so as to deprive the defendant of a fair trial.           Strickland v.

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

v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).
[Cite as State v. Wilson, 2012-Ohio-4065.]
        {¶11} In order to show he was prejudiced, Wilson needs to assert the

exact testimony that the sleeping juror missed. See State v. McKnight, 107

Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, at ¶ 187. Where there is

no evidence that the allegedly sleeping juror missed large or critical portions

of the trial, there is no evidence that prejudice occurred. Sanders, 92 Ohio

St.3d at 253; see also State v. Steagall, 8th Dist. No. 83991, 2004-Ohio-5035

(because “the record does not indicate when the juror fell asleep, we cannot

determine what, if anything, the juror missed.”)

        {¶12} Accordingly, the trial court properly denied Wilson’s petition

without an evidentiary hearing because he failed to submit admissible,

evidentiary documents containing sufficient operative facts to support his

claim for relief. Wilson’s three assigned errors are overruled.

        {¶13} Judgment affirmed.

        It is ordered that appellee recover of appellant its costs herein taxed.

        The court finds there were reasonable grounds for this appeal.

        It is ordered that a special mandate be sent to said court to carry this

judgment into execution. The defendant’s conviction having been affirmed,

any bail pending appeal is terminated. Case remanded to the trial court for

execution of sentence

        A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE

MARY J. BOYLE, J., and
LARRY A. JONES, SR., J., CONCUR
