[Cite as State v. Johnson,
2023-Ohio-879.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2022-09-063
: OPINION
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:
JEROMY JOHNSON, :
Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 20CR37419
David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant
Prosecuting Attorney, for appellee.
The Kollin Firm, LLC, and Thomas M. Kollin, for appellant.
PIPER, P.J.
{¶1} Appellant, Jeromy Johnson, appeals a decision of the Warren County Court
of Common Pleas denying his petition for postconviction relief without a hearing. For the
reasons detailed below, we affirm the trial court's decision.
Investigation
{¶2} The Warren County Drug Task Force ("Task Force") investigated Johnson for
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trafficking drugs out of his home. The record indicates that during the investigation, law
enforcement conducted traffic stops on two vehicles that had just left Johnson's residence.
Both individuals stopped were in possession of cocaine. According to the statement of facts
at the plea hearing, the individuals told law enforcement they had purchased the cocaine
from Johnson. Subsequently, the Task Force obtained a search warrant for Johnson's
home.
{¶3} The search warrant was executed on May 20, 2020. The search led to the
discovery of 91 grams of cocaine, two firearms, and U.S. currency. Johnson admitted that
he had been selling cocaine for some time. Based upon the foregoing, Johnson was
indicted for trafficking in cocaine with firearm and forfeiture specifications, possession of
cocaine with firearm and forfeiture specifications, having a weapon under disability,
possession of drugs, possessing criminal tools, and endangering children.1
Court Proceedings
{¶4} Johnson hired the law firm Rion, Rion & Rion, L.P.A. to represent him. The
record reflects that Jon Paul Rion signed and filed a notice of appearance on December 15,
2020, indicating that the Rion firm would be representing Johnson. Thereafter, Johnson
appeared at several hearings with Christopher Cavalier from the Rion firm.
{¶5} The record shows that additional searches were conducted at Johnson's
home in December 2020 and January 2021. Both searches apparently yielded additional
evidence of Johnson's involvement in criminal activity, however, pursuant to a later plea
agreement no further charges were brought.
{¶6} On February 22, 2021, Johnson appeared before the trial court for a hearing
with another attorney from the Rion firm, Ashley Caldwell. Caldwell represented to the court
1. The endangering children charge was based upon Johnson's son being present in the home.
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that Cavalier was no longer with the firm and that she was filling in. However, Caldwell
stated that Jon Paul Rion would be representing Johnson in future proceedings. The state
indicated in open court that it had attempted to convey a plea offer to Johnson's former
attorney, Cavalier, but had not heard back in response. Therefore, the state extended the
plea offer to Caldwell and Johnson on the record.
{¶7} The state's plea offer was for Johnson to plead guilty to one count of trafficking
in cocaine with accompanying firearm and forfeiture specifications, and to the endangering
children charge. In exchange, the state would agree to a prison sentence of four-to-six
years plus an additional one year for the firearm specification, for a total prison sentence of
five-to-seven years. The sentence for endangering children would be served concurrently.
The remaining charges would be dismissed. The state also agreed that it would not further
prosecute Johnson for charges arising out of the December 2020 and January 2021
searches of his home.
Guilty Plea
{¶8} Johnson appeared with Jon Paul Rion for a combined plea and sentencing
hearing on March 22, 2021. At the plea hearing, Johnson acknowledged to the court that
he understood the terms of the plea agreement, the nature of the charges, and the
maximum penalties. Johnson also stated that he understood the court was going to
sentence him to a minimum of five years to a maximum of seven years in prison pursuant
to the plea agreement. He further stated he understood he would be subject to post-release
control, the consequences of violating post-release control, and his constitutional rights he
was giving up by pleading guilty. Johnson affirmed that the signature on the written plea
form was his signature, and that he had reviewed the form with his attorney before signing
it. The trial court asked Johnson if he was satisfied with the representation he received in
the case. Johnson responded "Yes, sir." After receiving Johnson's plea of guilty, the court
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sentenced Johnson in accordance with the plea agreement. Johnson did not file a direct
appeal.
Petition for Postconviction Relief
{¶9} On April 21, 2022, Johnson filed a petition to vacate or set aside judgment of
conviction or sentence, asserting that he received ineffective assistance of counsel due to
his counsel's alleged failure to adequately investigate the case and consult with him. In
addressing the statement of facts for his claim, Johnson offered a scattered, and wide-
ranging account of the representation. In summary, Johnson claimed there was
miscommunication in the representation and noted that he had three different attorneys
from the Rion firm. He maintained that Jon Paul Rion "did not do anything to help my
situation or negotiate a better deal." He cited hearsay from other unidentified "lawyers" who
allegedly told his girlfriend that she needed to "light a fire under [Jon Paul Rion's] butt to get
him to be better."
{¶10} Notably, Johnson did not claim to be innocent or argue there was any
deficiency with his plea. Johnson stated "I entered the courtroom nervous, scared, mentally
drained and in shock. I did not know what to do. I just wanted it to be over. I agreed to the
plea, and signed the paperwork. I also agreed that my lawyer did a good job." He also did
not dispute that law enforcement found 91 grams of cocaine in his home even though he
claimed it was "mostly" for personal use. Concluding, Johnson stated "I think the biggest
problem was no one went over the discovery packet with me, I would have discussed the
issues with it before the plea was negotiated. And not getting any consideration for my
cooperation, COVID, character, and age."
{¶11} In support of his claim, Johnson submitted a document he wrote, as well as
documents purportedly signed by his girlfriend, Lisa Craaybeek, and a friend, Kim Hamel.
The Craaybeek document addressed the circumstances concerning a search of Johnson's
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residence while the Hamel document related to her stop by law enforcement in December
2020.2 Johnson also attached copies of emails sent from Craaybeek to John Paul Rion
expressing disappointment with the legal representation. Johnson also included several
audio recordings.3
{¶12} The state moved to dismiss or, in the alternative, grant summary judgment.
On August 24, 2022, the trial court dismissed Johnson's petition for postconviction relief
without a hearing. The trial court found that Johnson's claims were barred by res judicata.
The trial court further discounted the credibility of the documents from Craaybeek and
Hamel, noting that the documents were unsworn, self-serving, and contained information
inconsistent with the record in the case.4 The trial court also found that Johnson's petition
for postconviction relief did not contain operative facts constituting substantive grounds for
relief. Johnson now appeals, raising a single assignment of error for review:
{¶13} THE TRIAL COURT ERRED BY DISMISSING APPELLANT'S POST-
CONVICTION PETITION WHERE HE PRESENTED SUFFICIENT OPERATIVE FACTS
AND SUPPORTING EXHIBITS TO MERIT AN EVIDENTIARY HEARING AND
DISCOVERY IN VIOLATION OF HIS RIGHTS GUARANTEED BY THE
SIXTH/FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION.
2. The document from Hamel states that police officers found drugs in her car after a stop in December 2020
and seems to suggest that the stop was related to the Task Force investigation of Johnson. However, there
is no clear indication how this account is relevant. Johnson only pled guilty to the crimes charged following
the May 2020 search.
3. The audio recordings purportedly involve three different interactions: (1) a phone conversation between
Johnson and his attorney, (2) a conversation between Johnson and a detective, and (3) an audio recording
of the execution of a search warrant.
4. We note that "appellate courts may not decide the credibility of an affidavit supporting a postconviction
petition in the first instance." State v. Blanton, Slip Opinion No. 2022-Ohio-3985 at ¶ 98. However, when
reviewing a postconviction-relief petition, a trial court may judge the credibility of a supporting affidavit and
discard claims that are purely frivolous.
Id., citing State v. Calhoun,
86 Ohio St.3d 279, 284-285 (1999). "Such
a decision should be within the discretion of the trial court."
Calhoun at 285. For purposes of appellate review,
however, when a trial court "discounts the credibility of sworn affidavits," it should "include an explanation of
its basis for doing so." Blanton at ¶ 98;
Calhoun at 285. In this case, the trial court discounted the credibility
of the documents and properly included an explanation for doing so.
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Appeal
{¶14} In his sole assignment of error, Johnson argues the trial court erred by
denying his petition for postconviction relief without an evidentiary hearing. In so doing,
Johnson claims he presented sufficient evidence de hors the record to merit an evidentiary
hearing and discovery on his claim for ineffective assistance of counsel. We find Johnson's
argument to be without merit.
Ineffective Assistance of Counsel
{¶15} As in all ineffective assistance of counsel claims, Johnson was required to
show that his counsel's actions were outside the wide range of professionally competent
assistance, and that prejudice resulted by reason of counsel's actions. State v. Martin, 12th
Dist. Warren Nos. CA2003-06-065 and CA2003-06-066, 2004-Ohio-702, ¶ 12, citing
Strickland v. Washington,
466 U.S. 668, 687,
104 S.Ct. 2052 (1984). A defendant must
prove that, "but for counsel's unprofessional errors, the result of the proceeding would have
been different." State v. Wilson, 12th Dist. Madison No. CA2013-10-034,
2014-Ohio-2342,
¶ 17. In cases in which a defendant alleges ineffective assistance regarding a guilty plea,
"to show prejudice, the defendant must demonstrate there is a reasonable probability that,
but for his counsel's errors, he would not have pled guilty and would have insisted on going
to trial." State v. Byrd, 12th Dist. Madison No. CA2021-07-011,
2022-Ohio-1364, ¶ 11.
{¶16} "A trial court's decision resolving a postconviction claim of ineffective
assistance of counsel 'will be upheld absent an abuse of discretion when the trial court's
finding is supported by competent and credible evidence.'" State v. Long, 12th Dist. Warren
No. CA2021-02-014, 2021-Ohio-3651, ¶ 35, quoting State v. Widmer, 12th Dist. Warren
No. CA2012-02-008,
2013-Ohio-62, ¶ 133. "The term 'abuse of discretion' connotes more
than an error of law or of judgment; it implies that the court's attitude is unreasonable,
arbitrary or unconscionable." State v. Thornton, 12th Dist. Clermont No. CA2012-09-063,
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2013-Ohio-2394, ¶ 34.
Petition for Postconviction Relief
{¶17} A postconviction proceeding is not an appeal of a criminal conviction, but
rather, a collateral civil attack on a criminal judgment. State v. Bayless, 12th Dist. Clinton
Nos. CA2013-10-020 and CA2013-10-021, 2014-Ohio-2475, ¶ 8, citing State v. Calhoun,
86 Ohio St.3d 279, 281 (1999). Initial petitions for postconviction relief are governed by
R.C. 2953.21, which provides three methods for adjudicating the petition. State v.
Chamberlain, 12th Dist. Brown No. CA2015-03-008,
2015-Ohio-2987, ¶ 5. When a criminal
defendant challenges his conviction through a postconviction relief petition, the trial court
may (1) summarily dismiss the petition without holding an evidentiary hearing, (2) grant
summary judgment on the petition to either party who moved for summary judgment, or (3)
hold an evidentiary hearing on the issues raised by the petition. State v. Harris, 12th Dist.
Butler No. CA2019-07-121,
2020-Ohio-4101, ¶ 14.
No Substantive Grounds for Relief
{¶18} "An evidentiary hearing is not automatically guaranteed each time a
defendant makes a petition for postconviction relief." State v. Vore, 12th Dist. Warren Nos.
CA2012-06-049 and CA2012-10-106, 2013-Ohio-1490, ¶ 11. "Before a trial court may grant
a hearing on a petition, it must evaluate the petition in the context of the entire record in the
case to determine whether the petition alleges 'substantive grounds for relief.'" State v.
Blanton, Slip Opinion No.
2022-Ohio-3985, ¶ 24, quoting R.C. 2953.21(D). "A petition
presents substantive grounds for relief when it contains allegations that are sufficient to
state a constitutional claim and the files and records of the case do not affirmatively disprove
the claim."
Id.
Res Judicata
{¶19} Another basis for denying a postconviction petition without a hearing is that
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the claims are barred by res judicata. "The doctrine of res judicata bars someone from
raising a claim that could have been raised and litigated in a prior proceeding. … So a
court reviewing a postconviction-relief petition generally may not decide a claim that could
have been presented at trial and raised on direct appeal." Blanton at ¶ 2, citing State v.
Perry, 10 Ohio St.2d 175, 180 (1967).
{¶20} However, as noted by the Ohio Supreme Court in Blanton, postconviction
petitions claiming ineffective assistance of counsel "pose unique challenges." Id. at ¶ 29.
In these cases, res judicata does not bar claims for postconviction relief, inter alia, when a
petitioner "must rely on evidence outside the trial record to establish his claim for relief." Id.
at ¶ 2, citing State v. Cole, 2 Ohio St.3d 112, 113-114 (1982).5
{¶21} Still, merely providing evidence outside the record is not sufficient to entitle a
petitioner to a hearing.6 Rather, to secure a hearing, a petitioner "'must proffer evidence
which, if believed, would establish not only that his trial counsel had substantially violated
at least one of a defense attorney's essential duties to his client but also that said violation
was prejudicial to the [petitioner].'" Id. at ¶ 31, quoting Cole at 114.
{¶22} The supreme court articulated there is a two-part inquiry to determine whether
a petitioner who brings forth evidence outside the record of ineffective assistance of counsel
is entitled to a hearing: (1) "Has the petitioner introduced competent evidence of ineffective
assistance of counsel that was not included in the trial record?" and (2) "if so, does that
5. The supreme court indicated that while Cole referenced "res judicata," in the opinion, "a better
understanding of the holding in Cole is simply that the evidence in that case did not present a substantive
claim for relief." Blanton at ¶ 32.
6. This was the case prior to Blanton as well. This court has previously stated that "'[e]vidence presented
outside the record must meet some threshold standard of cogency.'" State v. Statzer, 12th Dist. Butler No.
CA2017-02-022, 2018-Ohio-363, ¶ 16, quoting State v. Lawson,
103 Ohio App.3d 307, 315 (12th Dist.1995).
If evidence that did not meet this threshold of cogency were sufficient, a petitioner could overcome res judicata
"'by simply attaching as exhibits evidence which is only marginally significant and does not advance the
petitioner's claim beyond mere hypotheses and a desire for further discovery.'"
Lawson at 315, quoting State
v. Coleman, 1st Dist. Hamilton No. C-900811,
1993 Ohio App. LEXIS 1485, *21 (Mar. 17, 1993).
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evidence present substantive grounds for relief; that is, if believed, would the newly
presented evidence—together with any evidence in the trial record—establish that counsel
was ineffective?" Blanton, 2022-Ohio-3985 at ¶ 33.
Analysis
{¶23} On appeal, Johnson claims the deficiency in his legal representation
"produced an unreliable result." He claims to have raised "salient issues" about
communication issues with his former attorney that merit, "at a minimum, the opportunity to
develop these allegations at an evidentiary hearing." He further claims to have supported
his argument with "credible evidence not contained in the trial court record."
{¶24} As noted above, Johnson attached various documents and recordings to his
petition that were not contained in the record below, including a document containing his
own thoughts on the case. Johnson attached a document from his girlfriend, Craaybeek,
who complained about the Task Force and their execution of the search warrant. Also
included was an email from a friend, Hamel, who complained about an incident where she
was pulled over and drugs were found in her car. Johnson also attached purported emails
sent by Craaybeek to Jon Paul Rion expressing dissatisfaction with the representation.
Further, he included three audio recordings: (1) a conversation purportedly between
Johnson and Jon Paul Rion, (2) a conversation purportedly between Johnson and a
detective, and (3) an audio recording of the execution of a search warrant.
{¶25} The trial court provided three reasons for denying Johnson's petition for
postconviction relief. First, it concluded that because Johnson could have raised these
issues previously, his claim was barred by res judicata. Second, it concluded that the
documents attached to Johnson's petition lacked credibility. It noted that the documents
were unsworn and contained speculative allegations, including hearsay statements. The
trial court stated that both Craaybeek and Hamel were strongly aligned with Johnson and
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were interested in the success of Johnson's efforts. Further, the court found that Johnson's
own statements were unreliable and were, at times, contradicted by other evidence. Finally,
the trial court determined that Johnson could not establish he was prejudiced by trial
counsel's actions. Therefore, the trial court found Johnson did not set forth sufficient
operative facts to establish substantive grounds for relief. Thus, the trial court did rule on
the merits of Johnson's petition.
{¶26} After reviewing the record, we find the trial court did not err by denying
Johnson's petition for postconviction relief without a hearing. It is well established that "a
court need not first determine whether counsel's performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged deficiencies."
Strickland, 466 U.S. 668 at 670. See also State v. Madrigal,
87 Ohio St.3d 378, 389 (2000)
("A defendant's failure to satisfy one prong of the Strickland test negates a court's need to
consider the other.")
{¶27} Even if we were to find that Johnson presented competent evidence that his
counsel was deficient, Johnson's appeal does not address any aspect of the Strickland
prejudice prong. As noted above, because Johnson pled guilty, he was required to
demonstrate there was a reasonable probability that he would not have pled guilty and
would have insisted on going to trial. Byrd, 2022-Ohio-1364 at ¶ 11. Here, Johnson only
claims the deficiencies by his trial counsel produced an "unreliable result." He states that
the "salient issues" that he raises merit "an opportunity to develop these allegations at an
evidentiary hearing."
{¶28} Yet he makes no argument that there was a reasonable probability, but for
counsel's errors, that he would not have pled guilty and insisted on going to trial. In his
petition for postconviction relief, Johnson summarily argued that trial counsel could have
negotiated a better plea agreement. However, that is pure speculation. The plea
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agreement that Johnson entered into was highly favorable to him. Johnson pled guilty to
less than half the charges in the indictment and received a reduced sentence. By pleading
guilty to a first-degree felony, Johnson faced an 11 to 16-and-one-half year maximum prison
term on that count alone. Johnson was only sentenced to a prison term of four-to-six years
on that count, with the second count running concurrently, and an additional one-year
specification. In addition, the state agreed not to prosecute Johnson further based upon
evidence discovered from the two subsequent searches.
{¶29} Johnson only speculates that he could have received a better deal based
upon dubious claims. Though he speculates that his trial counsel "did not do anything to
help my situation or negotiate a better deal," there is nothing to support his allegations. As
this court has previously stated, an appellate court will not infer a defense failure to
investigate from a silent record. State v. Ruggles, 12th Dist. Warren No. CA2021-03-023,
2022-Ohio-1804, ¶ 30. In this case, Johnson's trial counsel secured a highly favorable plea
agreement and after being fully advised of his rights, Johnson pled guilty to only two counts,
one with a specification. When asked if he was satisfied with the representation, Johnson
answered "Yes, sir." Accordingly, we find Johnson failed to present substantive grounds
for relief. See State v. Campbell, 6th Dist. Lucas No. L-17-1289,
2019-Ohio-5004, ¶ 62-63.
{¶30} We further note that in the materials presented for relief, Johnson admitted
that law enforcement found 91 grams of cocaine at his home and at least some of that drug
was for purposes of trafficking. He did so when he acknowledged that the quantity of drugs
was "mostly" for his personal use.7 Johnson does not claim any irregularity in the plea
hearing and, in fact, stated "I just wanted it to be over. I agreed to the plea, and I signed
7. Johnson also attached a purported audio recording between himself and a detective where Johnson
discussed buying and selling drugs. Furthermore, while Johnson claimed that he did not own the guns found
in his residence, he does not dispute that the guns were, in fact, found in his residence.
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the paperwork. I also agreed my lawyer did a good job." Based upon a thorough review,
we find the evidence presented, even if believed, did not establish a violation that was
prejudicial to the defendant. Blanton, 2022-Ohio-3985 at ¶ 52. The trial court was correct
in finding Johnson's petition for relief and exhibits did not contain operable facts constituting
substantial grounds for relief. Accordingly, we find the trial court did not err by denying
Johnson's petition for postconviction relief without a hearing. Johnson's sole assignment
of error is overruled.
{¶31} Judgment affirmed.
M. POWELL and BYRNE, JJ., concur.
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