[Cite as State v. Carter, 2016-Ohio-8150.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104351



                                       STATE OF OHIO
                                                   PLAINTIFF-APPELLEE

                                             vs.

                                 DARNELL F. CARTER
                                                   DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                    Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                          Case Nos. CR-14-582508-A, CR-14-583209-A,
                             CR-14-583775-A, and CR-14-585343-A

        BEFORE: Stewart, J., Kilbane, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: December 15, 2016
FOR APPELLANT

Darnell F. Carter, pro se
Inmate No. 660-778
Belmont Correctional Institution
P.O. Box 540
St. Clairsville, OH 43950


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

Amy Venesile
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, J.:

       {¶1} Defendant-appellant Darnell F. Carter appeals from an order of the trial court

denying his petition for postconviction relief. For the reasons that follow, we reverse and

remand for an evidentiary hearing.

       {¶2} On August 14, 2014, Carter pled guilty to single counts of aggravated robbery

in four separate cases. As part of the plea, the state agreed to a sentence consisting of

consecutive two-year prison terms on each offense. Carter did not directly appeal his

convictions.
      {¶3} In March 2015, Carter filed a timely, pro se “petition to vacate or set aside

judgment of conviction R.C. 2953.21,” and requested an evidentiary hearing. In his

petition, Carter argued that he was denied his Sixth Amendment right to effective

assistance of counsel at the plea hearing. Carter claimed that he informed his counsel on

several occasions that he did not commit the aggravated robberies, that he was being

framed by his ex-girlfriend who was angry about problems in their relationship, and that

he wanted to invoke his right to a jury trial and prove his innocence. According to the

petition, defense counsel induced Carter to waive his right to a jury trial after advising

him of “an incorrect legal rule of law.”     Specifically, Carter contends that defense

counsel told him that the state was not obligated to prove every element of the aggravated

robbery offenses because he had a previous conviction for aggravated robbery in another

case, which if proven by the state, would be sufficient on its own to meet the state’s

burden of proof on the current charges.       In his petition, Carter explained that his

counsel’s performance fell below an objective standard of reasonableness due to

counsel’s misstatement of the law, and that had counsel not misinformed him, he would

have rejected the plea deal and insisted on going to trial. According to Carter, the state

did not have any evidence connecting him to the crimes beyond his ex-girlfriend’s

testimony, the credibility of which would have been significantly impeached on

cross-examination.

      {¶4} Two months after filing his petition, Carter filed a motion for summary

judgment in support of which he attached his own, duly notarized, affidavit swearing that
the facts as alleged in his petition and reiterated therein, were true and accurate. The

state did not respond to Carter’s initial petition or his motion for summary judgment.

Nevertheless, the court denied the petition on May 8, 2015, stating,

       Defendant’s motion to vacate or set aside judgment of conviction is denied.
        The defendant entered a plea of guilty to the charges in this matter
       following a thorough rule 11 plea colloquy.

Carter, still acting pro se, appealed to this court. On appeal, the state filed a motion to

dismiss on the grounds that the order denying the petition was not a final appealable order

because the trial court failed to issue findings of fact and conclusions of law. We

granted the state’s motion to dismiss on the authority of State v. Hostacky, 8th Dist.

Cuyahoga No. 101282, 2015-Ohio-419, which states that appellate courts lack jurisdiction

to consider postconviction appeals where the trial court does not issue its findings and

conclusions. Accord R.C. 2953.21(C).

       {¶5} On October 26, 2015, Carter filed a pro se motion asking the trial court to

issue findings of fact and conclusion of law so that he could continue his appeal.

Without explanation, the trial court denied his request. Carter again asked the court to

issue the required findings of fact and conclusions of law by filing a second motion on

November 20, 2015. The court denied his request a second time. On February 5, 2016,

Carter filed a complaint with this court seeking a writ of mandamus to compel the trial

court to issue its findings and conclusions. On March 2, 2016, the prosecutor’s office

filed a general pleading with the trial court, proposing what the prosecutor believed

should be the court’s findings of fact and conclusions of law in the case. On March 29,
2016, the trial court issued the requested findings and conclusions. In doing so, the court

adopted the prosecutor’s proposed findings and conclusions, wholesale. Immediately

thereafter, the state filed a motion for summary judgment in the writ action, asking this

court to deny the writ as moot since the trial court completed the requested actions. We

granted the state’s motion for summary judgment and denied the writ as moot.

       {¶6} The court’s findings and conclusions explained that Carter could not establish

ineffective assistance of counsel, because he “fail[ed] to submit any kind of supplemental

evidence supporting his claim” that defense counsel coerced his guilty plea by

misrepresenting the law. The findings stated that Carter “[did] not offer any evidentiary

support reflecting such actions,” and intimated that Carter’s petition contained nothing

more than “unsupported accusations.” Moreover, the court cited to State v. Eggleton, 8th

Dist. Cuyahoga Nos. 63390 and 63391, 1994 Ohio App. LEXIS 237, 84 (Jan. 27, 1994),

for the proposition that

       [w]hen the record reflects compliance with Ohio Crim.R. 11 and petitioner

       fails to submit evidentiary documents to overcome that record, the

       post-conviction relief petition fails to show sufficient facts to establish an

       involuntary guilty plea.

The court concluded that Carter “was fully aware and knowingly, intelligently, and

voluntarily entered into his plea,” that “the court properly instructed and verified that

[Carter] was aware and knowledgeable about the consequences of his plea,” that there

was no evidence that Carter was prejudiced by his attorney, and that Carter “pleaded
guilty properly pursuant to Ohio Crim.R. 11.” For these reasons, the court stated it was

proper to dismiss the petition without a hearing. Carter filed the instant appeal.

       {¶7}    In his first assignment of error, Carter maintains that he was denied his

right to the effective assistance of counsel that caused him to make an unknowing,

unintelligent, and involuntary plea. We interpret this argument to mean that the court

abused its discretion in concluding that counsel was not ineffective. In his second

assignment of error, Carter argues that the court erred in denying his petition without an

evidentiary hearing. We address Carter’s second assignment of error first.

       {¶8} In reviewing the denial of a petition for postconviction relief, this court has

previously stated:

       A claim of ineffective assistance of counsel is waived by a guilty plea,
       except to the extent that the ineffective assistance of counsel caused the
       defendant’s plea to be less than knowing, intelligent and voluntary. State v.
       Williams, 8th Dist. Cuyahoga No. 100459, 2014-Ohio-3415, ¶ 11, citing
       State v. Spates, 64 Ohio St.3d 269, 272, 1992 Ohio 130, 595 N.E.2d 351
       (1992), citing Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36
       L.Ed.2d 235 (1973). Where a defendant has entered a guilty plea, the
       defendant can prevail on an ineffective assistance of counsel claim only by
       demonstrating that there is a reasonable probability that, but for counsel’s
       deficient performance, he would not have pled guilty to the offenses at issue
       and would have insisted on going to trial. Williams at ¶ 11, citing State v.
       Xie, 62 Ohio St.3d 521, 524, 584 N.E.2d 715 (1992), and Hill v. Lockhart,
       474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

State v. Vinson, 8th Dist. Cuyahoga No. 103329, 2016-Ohio-7604, ¶ 30.

       {¶9} Postconviction petitioners are not guaranteed an evidentiary hearing. State v.

Broom, 146 Ohio St.3d 60, 2016-Ohio-1028, 51 N.E.3d 620, ¶ 29. Instead, before a

court may grant a hearing on the petition, the court must first review the petition to
determine whether it alleges substantive grounds for relief.          R.C. 2953.21(C).     In

reviewing the petition, the court must consider the petition and supporting affidavits,

other documentary evidence submitted, and all records pertaining to the proceedings

against the petitioner. Id. at ¶ 29, quoting State v. Calhoun, 86 Ohio St.3d 279, 410, 639

N.E.2d 67 (1999), paragraph two of the syllabus.          In postconviction cases alleging

ineffective assistance of counsel, “‘[t]he 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,’”

before a hearing may be granted. Calhoun at 283, citing State v. Jackson, 64 Ohio St.2d

107, 413 N.E.2d 819 (1980), syllabus. In making its decision on whether to grant a

hearing, the court has full authority to weigh the credibility of the evidence submitted and

discount it accordingly. See State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679,

860 N.E.2d 77, ¶ 52.       A trial court’s decision to deny an evidentiary hearing in

postconviction proceedings is entitled to deference, therefore an appellate court will not

reverse the decision but for an abuse of discretion. Id. at ¶ 51.

       {¶10} There are several reasons we believe the trial court abused its discretion by

declining to hold an evidentiary hearing in this case. To begin, in denying Carter’s

petition without a hearing, the court relies heavily on the fact that it engaged Carter in the

required Crim.R. 11 colloquy prior to his entering a plea. Although we are without a

transcript of the plea hearing, the fact that the court conducted a proper Crim.R. 11

colloquy, by itself, does not obviate Carter’s claims of being prejudiced by the ineffective
assistance of counsel. Carter’s claims are founded on the allegation that counsel told him

that the state did not have to prove every element of the offenses charged because of his

prior aggravated robbery conviction. According to Carter, counsel caused him to believe

that the state could meet its burden of proof on the charges simply by proving his prior

conviction. We agree with Carter’s argument that even if the record reflects that the

court conducted a proper Crim.R. 11 colloquy, it would not have alerted him to counsel’s

alleged misstatements of law.

       {¶11} Although Crim.R. 11 does require that the court advise the defendant that

the state must prove the defendant’s guilt beyond a reasonable doubt, the rule does not

require the court to explicitly advise the defendant that the state must meet its burden of

proof on every single element of the offenses. Certainly courts may go beyond the

required advisements to give more clarification regarding the state’s burden of proof;

however, the court did not state in its findings and conclusions that it did so here. Thus,

even if we presume regularity of the Crim.R. 11 colloquy, without more information from

the trial court concerning exactly what was explained to the defendant, it cannot be said

that the court’s Crim.R. 11 advisements cured trial counsel’s alleged deficient

performance. Accord State v. Ayesta, 8th Dist. Cuyahoga No. 101383, 2015-Ohio-1695,

¶ 19, 20 (concluding that although the trial court correctly advised the defendant pursuant

to R.C. 2943.031(A) that there “may” be immigration consequences associated with his

plea, such advisement did not cure the prejudice associated with defense counsel’s

alleged failure to advise the defendant of the “mandatory” deportation consequences of
his plea). Accordingly, by referencing Crim.R. 11, it appears that the court did not fully

appreciate the nuances of Carter’s argument.

       {¶12} Second, the trial court repeatedly states that Carter has failed to provide

evidentiary support for his allegations of ineffective assistance of counsel. This is simply

not true. In support of his petition, Carter filed an affidavit swearing that his attorney

gave him incorrect legal advice concerning the state’s burden of proof, and that had

counsel advised him correctly, he would have insisted on going to trial on the charges.

Thus, the affidavit established claims of ineffective assistance of counsel, principally: 1)

counsel’s performance fell below an objective standard of reasonableness, and 2) a

reasonable probability that but for counsel’s errors, the results of the proceeding would

have been different (i.e., Carter would have gone to trial). Hill v. Lockhart, 474 U.S. 52,

58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Strickland v. Washington, 466 U.S. 668, 686,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

       {¶13} While we acknowledge that self-serving affidavits present credibility issues,

and we have on numerous occasions affirmed the denial of postconviction hearings on

that basis, see e.g., State v. Cody, 8th Dist. Cuyahoga No. 102213, 2015-Ohio-2764, ¶

33-35, we have never taken the position that self-serving affidavits are not evidence. In

fact, the Ohio Supreme Court has explained that even self-serving affidavits are more or

less credible depending on the circumstances of the case and facts in the record. See

Calhoun, 86 Ohio St.3d 279, 285, 714 N.E.2d 905. Thus, because Carter submitted

evidence outside the record in the form of his affidavit, and the affidavit supported his
allegation of ineffective assistance of counsel, the court had a duty to consider the

affidavit and determine its credibility based on other facts in the record. See Broom, 146

Ohio St.3d 60, 2016-Ohio-1028, 51 N.E.3d 620, at ¶ 29; see also Calhoun at 285.

       {¶14} We are not convinced that the trial court conducted a review of the record

sufficient to determine the credibility of Carter’s affidavit. Our conclusion on this point

is informed by the summary nature in which the court originally denied Carter’s petition

and the fact that Carter had to file two motions and a writ of mandamus before the trial

court issued its findings of fact and conclusions of law.

       {¶15} Moreover, there were several errors in the court’s findings of fact and

conclusions of law that were not corrected from the prosecution’s proposed entry. One

obvious error in the trial court’s entry was the finding that Carter’s two-year sentence on

each count ran concurrently. Carter received an agreed upon sentence that included

two-year prison terms on each offense to run consecutively, not concurrently. Other

errors evidenced a confusion over which court — the trial court or this court — dismissed

the first appeal, and the dates in which Carter filed certain motions. Additionally, the

prosecutor’s proposed findings and conclusions that were adopted by the court contained

incomplete citations to cases. This calls into question whether the court independently

researched those authorities. In postconviction cases, courts have an obligation to review

the entire record before making a decision. Broom at ¶ 29. Accordingly, misstatements

of law and/or fact in the court’s judgment entry, tend to undermine the court’s ruling.
Accord State v. Wilson, 2d Dist. Montgomery No. 16524, 1998 Ohio App. LEXIS 366,

*11-12 (May 14, 1998).

       {¶16} Lastly, the record shows that Carter did not take a direct appeal in this case

and has been representing himself throughout the postconviction process. Carter filed a

motion on March 12, 2015, asking the trial court for the appointment of counsel to

represent him during the proceedings.         Carter explained in his motion that he was

indigent and currently serving his sentence at the Belmont Correctional Facility, which

made it difficult for him to depose his trial attorney or get his attorney to file an affidavit

supporting his petition.     Carter’s motion for appointment of counsel was denied.

Although there is no right to counsel in postconviction proceedings, Carter’s request for

counsel may offer some context for why he only submitted his own affidavit in support of

his petition, and leaves open the possibility that a hearing would produce further evidence

to aid the court in its decision. See Broom at ¶ 31 (explaining that a postconviction

evidentiary hearing might be necessary where the “hearing would aid the court in

resolving the legal questions before it.”).

       {¶17} Because we are not satisfied that the trial court understood the basis of

Carter’s petition nor conducted an independent review of the record before denying

Carter’s petition without a hearing, we sustain the second assignment of error. Having

determined that the court should hold an evidentiary hearing on the petition, we decline to

review Carter’s first assignment of error.

       {¶18} Judgment reversed and remanded.
       It is ordered that appellant recover of appellee 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.



______________________________________________
MELODY J. STEWART, JUDGE

MARY EILEEN KILBANE, P.J., CONCURS;
SEAN C. GALLAGHER, J., DISSENTS (WITH SEPARATE OPINION)

SEAN C. GALLAGHER, J., DISSENTING:

       {¶19} I respectfully dissent.    The majority injects a new review standard into

postconviction proceedings, focusing on whether the appellate court is convinced that the

trial court sufficiently reviewed the record before issuing the findings of fact and

conclusions of law.    Our review in this case is limited to determining whether the trial

court abused its discretion in denying the motion for postconviction relief without a

hearing based on the findings of fact and conclusions of law that have not been objected

to by the defendant. On March 2, 2016, the state filed proposed findings of fact and

conclusions of law with no objection from Carter under Loc.R. 19(A) of the Court of

Common Pleas of Cuyahoga County, General Divsion. I would find there was no error

in the conclusions of law as presented by the trial court.   The trivial typographical errors
in the findings of fact regarding dates and the clearly consecutive nature of the final

sentences are insufficient to find an abuse of discretion when none of those errors affect

the trial court’s legal conclusion.

       {¶20} The trial court has full authority to weigh the credibility of evidence

submitted for the purpose of determining whether a hearing is necessary.     The trial court

in this case did just that and deemed Carter’s affidavit to be self-serving and incredible

based on the lack of corroborating evidence.     This is a proper standard of review for the

trial court.

       {¶21} In this case, the trial court presided over Carter’s criminal proceedings.   A

trial court may go so far as to “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.”           State v. Hines, 8th Dist. Cuyahoga No. 89848,

2008-Ohio-1927, ¶ 10, quoting Calhoun, 86 Ohio St.3d 279, 284, 714 N.E.2d 905. As

the panel concluded in Hines, the fact that the defendant is unable to corroborate his

affidavit testimony is sufficient grounds to deem the affidavit incredible and deny the

defendant an evidentiary hearing. Id. The trial court in this case reached the same

conclusion after having reviewed the record and the filed evidence.     A defendant’s own

self-serving affidavit alleging a coerced guilty plea is insufficient to rebut a record that

showed the voluntariness of the plea.     Wilson, 8th Dist. Cuyahoga No. 72740, 1998 Ohio

App. LEXIS 2174, *13 (May 14, 1998).
          {¶22} I would follow our precedent and find that the trial court in this case did not

abuse its discretion in finding the affidavit unreliable, the only evidence submitted to

substantiate grounds for relief.

          {¶23} The defendant has not provided a transcript of his sentencing for appellate

review and in the absence of the transcript, we must presume regularity and that Crim.R.

11 was fully satisfied. Carter cannot even begin to argue error on appeal when we cannot

determine whether he is able to rebut the record in the first place. As a result, I would

affirm.
