[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
4
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
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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
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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
11
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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