[Cite as State v. Sullivan,
2023-Ohio-3520.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. Nos. 19CA011454
22CA011859
Appellee
v.
APPEAL FROM JUDGMENT
JOHN SULLIVAN ENTERED IN THE
COURT OF COMMON PLEAS
Appellant COUNTY OF LORAIN, OHIO
CASE No. 18CR099164
DECISION AND JOURNAL ENTRY
Dated: September 29, 2023
CARR, Judge.
{¶1} Defendant-Appellant John Sullivan appeals the judgments of the Lorain County
Court of Common Pleas. This Court affirms.
I.
{¶2} In September 2018, Sullivan was indicted on one count of aggravated murder, two
counts of murder, two counts of felonious assault, one count of tampering with evidence, and one
count of having weapons while under disability. Firearm specifications accompanied all the
charges aside from the count of having weapons while under disability. The charges stemmed
from a murder for hire that took place in July 2018. Sullivan and another man were hired to kill
the victim.
{¶3} In December 2018, Sullivan pleaded guilty to the indictment. While there was no
agreed upon sentence, the written plea agreement included a merger analysis indicating that counts
two through five were allied with count one and that the State elected to proceed to sentencing on
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count one and that sentences were to be imposed on counts six and seven. The trial court sentenced
Sullivan to an aggregate sentence of life in prison with parole eligibility after 39 years.
{¶4} On January 10, 2019, Sullivan filed a pro se notice of appeal. Counsel was
thereafter appointed. While the appeal was pending, Sullivan filed a pro se motion to withdraw
his plea in the trial court. The trial court denied the motion.
{¶5} On March 17, 2020, Sullivan filed a petition for postconviction relief and a motion
to withdraw his plea. On March 20, 2020, Sullivan filed an amended petition and an amended
motion to withdraw his plea. With respect to his petition and amended petition for postconviction
relief, Sullivan contended his trial counsel was ineffective by failing to inform Sullivan of the
evidence against him and by pressuring Sullivan to believe that he would receive the death penalty
if he did not plead guilty. In addition, Sullivan contended that his conviction for having weapons
under disability was barred by the Double Jeopardy Clause as he was convicted of the same offense
in Cuyahoga County. That charge involved the same date as the charge in the instant matter.
Following the murder, Sullivan was stopped by police in Cuyahoga County for speeding and was
arrested pursuant to an unrelated warrant. The gun was discovered during an inventory search and
was later determined to be the murder weapon. Thus, Sullivan was charged with having weapons
while under disability in both Cuyahoga and Lorain Counties.
{¶6} The State moved to dismiss Sullivan’s amended petition and opposed his motion to
withdraw his plea. The State argued that Sullivan failed to establish substantive grounds for relief
in his amended petition and also asserted that Sullivan’s double jeopardy argument was barred by
res judicata. Sullivan responded in opposition to the State’s motion. The trial court set the matter
for a hearing. In the interim, briefing in the direct appeal was stayed pending the resolution of
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Sullivan’s trial court filings. Ultimately, hearings were held in the trial court on February 7, 2022,
and February 17, 2022.
{¶7} The trial court denied Sullivan’s petition and his motion to withdraw his plea on
the merits. Sullivan then appealed, and this Court consolidated both appeals.
{¶8} Sullivan raises two assignments of error related solely to the entry denying his
petition for postconviction relief.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED BY DENYING APPELLANT’S POST-CONVICTION RELIEF PETITION BASED ON INEFFECTIVE ASSISTANCE
OF COUNSEL.
{¶9} Sullivan argues in his first assignment of error that the trial court erred in denying
his petition for postconviction relief as he was denied the effective assistance of counsel.
{¶10} “A trial court’s denial of a petition for post-conviction relief is reviewed for an
abuse of discretion. State v. Smith, 9th Dist. Summit Nos. 29779, 29780, 2021-Ohio-1177, ¶ 8.
An abuse of discretion is more than an error of law or judgment; it is a finding that the court's
attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore,
5 Ohio St.3d 217,
219 (1983).” State v. Brantley, 9th Dist. Summit No. 29924,
2021-Ohio-4621, ¶ 6.
When a petitioner’s post-conviction claim sounds in ineffective assistance of
counsel, a trial court must analyze his … claim under the two-step test set forth
in Strickland v. Washington, 466 U.S. 668 (1984). Thus, the petitioner must show
that (1) counsel’s performance was deficient, and (2) the deficiency prejudiced him.
Strickland at 687.
In the context of a guilty plea, prejudice will lie only if there is a reasonable
probability that, but for … counsel’s error, [the petitioner] would not have
pleaded guilty and would have insisted on going to trial. To that end, ineffective
assistance will only be found to have affected the validity of the plea when it
precluded the defendant from entering the plea knowingly and voluntarily.
(Internal quotations and citations omitted.) Smith at ¶ 9.
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{¶11} In his petition, Sullivan contended that trial counsel was deficient by failing to
inform Sullivan of the evidence against him and unduly pressuring Sullivan to believe that he
would receive the death penalty if he did not plead guilty. Sullivan also submitted an affidavit
wherein he averred that he would have chosen to go to trial if his trial counsel had shown him the
discovery materials and not pressured him into believing he would receive the death penalty if
Sullivan would have gone to trial.
{¶12} During the hearing on the petition, both Sullivan and trial counsel testified.
Sullivan essentially contended that trial counsel never showed Sullivan any of the discovery
including the video of the shooting. Sullivan denied shooting the victim and claimed that police
coerced his confession by showing him a loaded weapon and writing down on a white board what
police wanted Sullivan to say. Sullivan also testified that as early as September 2018, trial counsel
told Sullivan to plead guilty “before they kill you.” Sullivan maintained that trial counsel
repeatedly told Sullivan that he needed to plead “before they put a needle in your arm and kill
you.” Yet, Sullivan also claimed that trial counsel never told Sullivan that the prosecutor had plans
to add a capital specification if Sullivan did not plead guilty. Sullivan claimed that trial counsel
did not discuss the plea forms in detail with Sullivan despite his statements to the contrary at the
plea hearing. Sullivan maintained that the plea sheets he signed were blank when he signed them.
{¶13} Trial counsel’s testimony contradicted Sullivan’s. Trial counsel testified that he
has been practicing law since 1997 and that criminal defense represented about 95% of his practice.
He is certified to handle capital cases. Trial counsel discussed in detail the discovery he shared
with Sullivan, including the video which they watched multiple times. Trial counsel stated that,
on the video, Sullivan could be seen shooting the victim, and Sullivan could also be seen coming
out of the woods, turning, walking right by the camera, and looking up. Trial counsel’s detailed
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notes and billing statement were also presented as evidence. Trial counsel additionally testified
that even as early as August 2018, there was a concern as to the possibility of a “capital
component[.]” Trial counsel indicated that the case had the hallmarks of a death penalty case in
that Sullivan made statements to the police about what happened, was on video committing the
crime, and the crime was a murder for hire. Trial counsel discussed these concerns with Sullivan
and also informed him of the possible penalties. Trial counsel discussed the proposed plea with
Sullivan and gave him time to think about it. Prior to the plea, the prosecutor told trial counsel
that if Sullivan did not plead the prosecutor planned to go back to the grand jury to add a capital
specification. Trial counsel relayed that information to Sullivan. Trial counsel denied that he
began encouraging Sullivan to plead even before discovery was reviewed.
{¶14} In ruling on Sullivan’s petition, the trial court specifically stated that it found
“Sullivan’s self-serving testimony lack[ed] credibility.” The trial court additionally found that
trial counsel’s testimony was credible. The trial court went on to state:
Sullivan’s testimony that he was never shown the video or other discovery; that
[trial counsel] never even discussed discovery; and that on every visit with Sullivan
all [trial counsel] ever[] said was that Sullivan should plead guilty or the State was
going to kill him all lacked credibility. [Trial counsel’s] credible testimony was
corroborated by his billing statement.
{¶15} As the Supreme Court has noted, “the trial court ‘sees and hears the live
postconviction witnesses, and [it] is therefore in a much better position to weigh their credibility
than are the appellate judges.’” State v. Weaver, Slip Opinion No. 2022-Ohio-4371, ¶ 25, quoting
State v. Gondor,
112 Ohio St.3d 377,
2006-Ohio-6679, ¶ 55. Given the trial court’s credibility
determinations, we cannot say that Sullivan has demonstrated that the trial court abused its
discretion in denying Sullivan’s petition on the basis of his ineffective assistance of counsel
argument. There was evidence presented that trial counsel shared discovery with Sullivan and
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kept him informed about the case. Trial counsel’s testimony contradicted Sullivan’s on the issues
argued by Sullivan, and the trial court found trial counsel’s testimony to be credible. Sullivan has
not demonstrated that the trial court abused its discretion in concluding that trial counsel was not
deficient, and that Sullivan did not demonstrate prejudice.
{¶16} Sullivan’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY SENTENCING APPELLANT TO [HAVING
A] WEAPON [WHILE] UNDER DISABILITY AND DENYING APPELLANT’S
POST-CONVICTION RELIEF PETITION IN VIOLATION OF APPELLANT’S
CONSTITUTIONAL RIGHTS AGAINST DOUBLE JEOPARDY.
{¶17} Sullivan argues in his second assignment of error that the trial court abused its
discretion in denying his petition for postconviction relief as his constitutional right against double
jeopardy was violated when he was sentenced in this matter for having weapons under disability
after being convicted in Cuyahoga County for the same offense related to events that occurred on
the same date. He also argues that his trial counsel was ineffective in failing to raise the double
jeopardy issue below; however, Sullivan did not argue in his petition for postconviction relief that
trial counsel was ineffective with respect to this issue and so it will not be addressed on appeal.
See State v. Schwarz, 9th Dist. Medina No. 02CA0042-M, 2003-Ohio-1294, ¶ 14 (“Courts have
consistently held that arguments which are not raised below may not be considered for the first
time on appeal.”).
{¶18} “The protections afforded by the Ohio and United States Constitutions’ Double
Jeopardy Clauses are coextensive … [and] protect against three abuses: (1) a second prosecution
for the same offense after acquittal, (2) a second prosecution for the same offense after conviction,
and (3) multiple punishments for the same offense.” (Citations omitted.) State v. Genet, 9th Dist.
Wayne No. 19AP0030, 2020-Ohio-2662, ¶ 9.
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{¶19} While the trial court resolved this issue on the merits, the State argued below that
Sullivan’s argument was barred by res judicata.
Under the doctrine of res judicata, a final judgment of conviction bars the convicted
defendant from raising and litigating in any proceeding, except an appeal from that
judgment, any defense or any claimed lack of due process that was raised or could
have been raised by the defendant at the trial which resulted in that judgment of
conviction or on an appeal from that judgment. …
Just as the petitioner’s knowledge, at the time of trial, of the error of fact relied
upon, or his fault in not discovering such error previously, will bar relief under a
common-law writ of error coram nobis, such factors will also bar a comparable
statutory (postconviction) remedy.
State v. Perry, 10 Ohio St.2d 175, 180-181 (1967); see also State v. Szefcyk,
77 Ohio St.3d 93
(1996), syllabus.
{¶20} The Supreme Court “has held many times that the plea of double jeopardy is [a]
matter of defense which must be raised in the trial court o[r] it is waived.” Neal v. Maxwell, 175
Ohio St. 201, 202 (1963). The Supreme Court has also held that “an order denying a motion to
dismiss on double-jeopardy grounds is a final, appealable order.” State v. Anderson,
138 Ohio
St.3d 264,
2014-Ohio-542, ¶ 61.
{¶21} Here, Sullivan’s affidavit submitted in support of his petition evidences that, with
respect to the Cuyahoga County case, he pleaded guilty to having weapons while under disability
in August 2018. The record further demonstrates that his indictment in the instant matter was filed
in September 2018. Evidence admitted at the hearing indicates an October 2018 report established
that the weapon recovered in Cuyahoga County was the murder weapon. Thus, Sullivan has not
demonstrated that the information necessary to pursue this issue was unavailable to him during the
course of the trial court proceedings. See State v. Jackson, 10th Dist. Franklin No. 01AP-808,
2002-Ohio-3330, ¶ 45 (“To overcome the barrier of res judicata, a petitioner must attach evidence
dehors the record that is competent, relevant and material and that was not in existence or available
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for use at the time of the trial.”) (Internal quotations omitted.); see also State v. Thomas, 9th Dist.
Wayne No. 2762, 1993 WL 347107, *1-2 (Sept. 15, 1993).
{¶22} Accordingly, even if this Court were to conclude that the trial court erred in its
analysis of the merits of Sullivan’s double jeopardy argument, Sullivan has not demonstrated that
the trial court’s denial of his petition amounted to reversible error as Sullivan’s argument is barred
by res judicata.
{¶23} Sullivan’s second assignment of error is overruled.
III.
{¶24} Sullivan’s assignments of error are overruled. The judgments of the Lorain County
Court of Common Pleas are affirmed.
Judgments affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
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Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
SUTTON, P. J.
STEVENSON, J.
CONCUR.
APPEARANCES:
STEPHEN P. HANUDEL, Attorney at Law, for Appellant.
J.D. TOMLINSON, Prosecuting Attorney, and C. RICHLEY RALEY, JR., Assistant Prosecuting
Attorney, for Appellee.
