State v. Smith , 2019 Ohio 3642 ( 2019 )

[Cite as State v. Smith, 2019-Ohio-3642.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-180081
TRIAL NO. B-0600007
Plaintiff-Appellee, :
vs. : O P I N I O N.
CHRISTOPHER SMITH, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: September 11, 2019
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Ohio Justice & Policy Center and David A. Singleton, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Presiding Judge.
{¶1} Defendant-appellant Christopher Smith appeals the Hamilton County
Common Pleas Court’s judgment overruling his Crim.R. 32.1 motion to withdraw his
no-contest pleas. We reverse that judgment upon our determination that the court
abused its discretion in overruling the motion without first conducting an evidentiary
hearing.
Procedural Posture
{¶2} Smith was indicted in January 2006 on two counts of attempted
murder, three counts of felonious assault, two counts of aggravated robbery, two
counts of robbery, and single counts of carrying a concealed weapon and having
weapons under a disability. Those charges arose in connection with two armed
robberies followed by an encounter with two Cincinnati police detectives during
which Smith shot at the officers, striking one officer in the knee.
{¶3} In February 2006, Smith retained attorney Kenneth L. Lawson.
Lawson filed discovery requests and secured a series of continuances until October
17, 2006, when Smith entered no-contest pleas to all counts.
{¶4} Plea and sentencing proceedings. At the plea hearing, the
trial court advised Smith, and he acknowledged his understanding, that he faced
prison terms totaling a minimum of 13 years and up to 105½ years. And he denied
that his pleas had been prompted by threats or promises. The court accepted the
pleas and found Smith guilty as charged upon his admission, by his no-contest pleas,
of the truth of the facts alleged in the indictment, see Crim.R. 11(B)(2), along with the
following recitation of facts: Smith separately approached two men and, in each
instance, demanded money, while indicating that he had a gun concealed in his
clothing. The first man surrendered money and his cell phone; the second man ran
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into the street and yelled that he was being robbed, and Smith fled. Smith was then
observed by two Cincinnati plainclothes homicide detectives following a young
woman and “acting peculiar.” The detectives approached Smith and identified
themselves as police officers. Smith pulled a gun from his waistband and fired
multiple shots at the officers, striking one in the knee. Smith then fled and was later
found hiding under a truck, with a handgun in his possession. See State v. Smith, 1st
Dist. Hamilton No. C-060991, 2008-Ohio-2561, ¶ 1-2, appeal not allowed, 120 Ohio
St.3d 1416, 2008-Ohio-6166, 897 N.E.2d 652.
{¶5} In its presentence memorandum, the state “urge[d] the Court to
impos[e] either the maximum sentence permitted by law and/or a substantial
sentence involving ‘high-end’ consecutive sentences * * * .” Lawson submitted
nothing on Smith’s behalf.
{¶6} At the sentencing hearing, following review of the presentence-
investigation report, Lawson, at Smith’s request, orally moved to withdraw his no-
contest pleas, stating the following the reasons for withdrawal: (1) Smith “believe[d]
that he should not have been convicted of all charges on a no-contest plea * * *
because there was only one shot fired”; (2) Smith had previously discussed with
Lawson his belief that he had acted in self-defense and had, when he entered his
pleas, “believe[d] that he c[ould] admit to the facts and still argue self-defense”; and
(3) Smith had not, and “quite frankly neither [had Lawson], expect[ed] the [police]
officers to ask for the maximum sentence in the PSI upon a plea.” The trial court
overruled the motion and, following the defense’s presentation of its case in
mitigation, sentenced Smith to consecutive prison terms totaling 85 years.
{¶7} Direct appeal. In subsequent challenges to his convictions, Smith
asserted his innocence and challenged Lawson’s effectiveness. Smith filed pro se a
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timely notice of appeal. Attached to his notice of appeal was a handwritten
statement complaining about Lawson’s representation and failure to file, as
promised, a notice of appeal in the case. According to Smith, Lawson did not
communicate or meet with him until the date set for trial. Lawson asked Smith to
plead guilty, and Smith initially declined, but ultimately agreed to plead no-contest
after Lawson promised him and his family sentences totaling “ten years for [his]
whole case.” Smith arrived at the sentencing hearing expecting a ten-year sentence
and followed Lawson’s prehearing instructions to “say yes to everything [the trial
judge] asked.” After sentencing, Lawson promised to file an appeal. Thereafter,
Lawson neither communicated with Smith nor followed through with his promise to
appeal.
{¶8} Two weeks after Smith filed his pro se notice of appeal, Lawson filed a
motion to “set aside” Smith’s no-contest pleas “and to grant him a new trial,” on the
ground that he had not waived his right to a jury trial in conformity with R.C.
2945.05. See Smith, 1st Dist. Hamilton No. C-060991, 2008-Ohio-2561, at ¶ 31-33
(deciding the jury-waiver issue in the direct appeal). A week later, Lawson filed an
untimely notice of appeal. We dismissed that appeal as superfluous to Smith’s pro se
appeal. See State v. Smith, 1st Dist. Hamilton No. C-061035 (Jan. 12, 2007).
{¶9} Two months later, Lawson filed with the trial court a motion asking
the court to “continue” the proceedings on his motion to “set aside” Smith’s pleas,
“[d]ue to medical and surgical reasons” requiring Lawson to be hospitalized for a
month. Smith thereafter retained new counsel to represent him in his direct appeal
and to file an R.C. 2953.21 petition for postconviction relief.
{¶10} In the direct appeal, we held that the trial court did not abuse its
discretion in overruling the oral presentence motion to withdraw Smith’s no-contest
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pleas. And we held that the record did not demonstrate Lawson’s alleged
ineffectiveness in preparing Smith’s case and in persuading him to plead no-contest
to all charges in the indictment, with a false promise of a ten-year agreed sentence
and despite the state’s recommendation of high-end sentences. But we remanded for
the merger of several counts consistent with R.C. 2941.25. See Smith, 1st Dist.
Hamilton No. C-060991, 2008-Ohio-2561, at ¶ 12-14, 20-30, 34-35.
{¶11} Following resentencing, Smith stood convicted of two counts of
attempted murder, two counts of felonious assault, and single counts of aggravated
robbery, robbery, carrying a concealed weapon, and having weapons under a
disability. His prison terms for those offenses totaled 64 years.
{¶12} Postconviction petition. In 2007, newly retained counsel timely
filed a postconviction petition. In his petition, Smith again challenged Lawson’s
effectiveness. Smith asserted that Lawson had violated his duties to communicate
with him and to adequately investigate and prepare his case. And he asserted that he
had been persuaded to plead no-contest by Lawson’s false representations that the
state had made a plea offer that included an agreed ten-year prison sentence and that
his family supported his acceptance of that offer.
{¶13} In support of his postconviction challenges to Lawson’s effectiveness,
Smith offered his own affidavit and that of his grandmother. According to Smith, he
first met Lawson on the date set for trial, nine months after Lawson had been
retained by Smith’s family. Lawson arrived at the holding cell well after the time set
for trial, “appeared disheveled, * * * had a bad odor,” and “appeared to be sleepy.
His eyes were red, and his lips were dry and white.” Smith related to Lawson the
facts of his case and asserted that he had acted in self-defense, that he wanted a jury
trial, and that he “would not admit to something that [he] did not do.” Lawson
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OHIO FIRST DISTRICT COURT OF APPEALS
responded that he had already negotiated a plea agreement under which Smith
would enter no-contest pleas to all charges and specifications in exchange for a ten-
year sentence. Lawson told Smith that he could still present a defense and argue the
facts, and that the trial court would acquit him of some of the offenses charged in the
indictment. After Lawson had assured him that his grandmother and great aunt had,
that morning, told Lawson to tell Smith to “take the ten years,” Smith agreed to
plead. But before sentencing, Smith learned from his grandmother that she did not
support the plea agreement. Thus, on the day of sentencing, Smith dismissed
Lawson’s assurances that “the deal [was] for ten years” and that “everything was
going to work out as he had previously discussed.” And he directed Lawson to move
before sentencing to withdraw his pleas.
{¶14} Smith’s grandmother averred in her affidavit that she had spoken
often with Smith during the nine months he awaited trial, and that from their
conversations, she knew Smith had intended to proceed to trial. Outside the
courtroom on the day of trial, she expressed to Lawson her concern that he and
Smith had not yet met. She “noticed unusual movements in [Lawson’s] hands and in
his arms.” Smith had consistently maintained that he “wanted a trial,” and she
believed that he “should not say he did something that he did not do.” Thus, when
she spoke to Lawson after he had met with Smith, she was confused by Lawson’s
explanation of the plea procedure and by his statement that Smith had agreed to
enter no-contest pleas. After the plea hearing, Lawson advised her that he would
“immediately file an appeal” and would contact her later. She never heard from him
again.
{¶15} The common pleas court denied Smith’s postconviction petition
without an evidentiary hearing, upon its determination that the record of the
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proceedings at the plea hearing disproved Smith’s claim that he had entered his no-
contest pleas in reliance upon Lawson’s false representations concerning the ten-year
plea agreement and his family’s support for the agreement. On appeal, we found that
the record also supported Smith’s claim, and we reversed and remanded for an
evidentiary hearing on the petition. State v. Smith, 1st Dist. Hamilton No. C-
070624, 2008-Ohio-3789.
{¶16} The common pleas court, on remand, entered judgment denying the
petition and setting forth findings of fact and conclusions of law. Those findings of
fact and conclusions of law were based on matters adduced at a November 2008
evidentiary hearing and a January 2009 proceeding during which “the parties
entered certain stipulations for the purpose of consideration on the merits of the
[postconviction] claims.”
{¶17} We note that certified transcripts of the proceedings during Smith’s
2006 plea and sentencing hearings were made a part of the record, when they were
filed in his 2007 direct appeal. But despite his compliance with the requirements of
App.R. 9(B), certified transcripts of the proceedings during the 2008 and 2009
hearings on his postconviction petition were not made a part of the record in his
appeal from the denial of postconviction relief.1 Nor were certified hearing
transcripts made a part of the record in any subsequent proceeding. Because the
certified hearing transcripts were not a part of the record before the common pleas
court in deciding the new-trial motion from which this appeal derives, they are not a
1 In that appeal, Smith indicated in the docket statement that a complete transcript of the
proceedings would be filed, and he timely filed (along with a motion for appointed counsel) a
praecipe and a motion asking the court to direct the court reporter to prepare and file a complete
transcript. See App.R. 9(B) and 10(A). Nevertheless, certified transcripts of those proceedings
were never filed. And that deficiency in the record went unremarked, when that appeal was
dismissed for failure to timely file the appellant’s brief. See State v. Smith, 1st Dist. Hamilton No.
C-090215 (Sept. 29, 2009).
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part of the record in this appeal. See State v. Ishmail, 54 Ohio St. 2d 402, 405-406,
377 N.E.2d 500 (1978), paragraph two of the syllabus.
{¶18} But the record in this appeal does include findings of fact and
conclusions of law made by the common pleas court in denying postconviction relief.
Based in part upon the matters adduced at those hearings, including the
“stipulations” made by Lawson, the court found that the record and outside evidence
did not demonstrate that Lawson had been constitutionally ineffective in
investigating and preparing his case, in representing him while impaired by drugs, or
in persuading him to plead no-contest with the false statements that the plea offer
was for ten years and was supported by his family and that he could still argue self-
defense and gain acquittal on some of the charges.
{¶19} With respect to the alleged deficiencies in Lawson’s pretrial
preparations, the court noted that, although Lawson had admitted in his stipulations
that he “couldn’t remember specific dates and times when he met with [Smith], he
did specifically remember having several prior personal contacts with [him] wherein
they reviewed [his] case.” And the court noted that the record shows that Lawson
had filed discovery requests and had appeared in court on Smith’s behalf seven
times, that Smith had acknowledged at his plea hearing his satisfaction with
Lawson’s representation, and that Smith had expressed no dissatisfaction until the
handwritten statement submitted with his pro se notice of appeal in the direct
appeal.
{¶20} Lawson’s “drug problem,” the court noted, was made public in April
2007, and Smith and his grandmother first complained of Lawson’s “alleged
‘impairment’ ” in their April and May 2007 affidavits offered in support of Smith’s
2007 postconviction petition. That allegation, the court determined, was not
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corroborated in the record or by other outside evidence. And Lawson in his
stipulations, while admitting to drug abuse from 2000 or 2001 to February 2007,
insisted that his drug use had neither affected his physical appearance nor
“necessarily affect[ed] his ability to function,” and that using drugs in the morning
had “permitted” him to function in court.
{¶21} Concerning the alleged ten-year agreed sentence, the court noted that
Lawson had denied in his stipulations telling Smith or his family that the plea offer
was for an agreed sentence. And, the court noted, the record shows that, at the plea
hearing, Smith acknowledged his understanding that he faced aggregate prison
terms of 13 years minimum and up to 105½ years, denied that his pleas were
prompted by threats or promises, and did not then inform the court of a ten-year
agreed sentence. Also, Smith did not seek to withdraw his pleas until the day of
sentencing, after he had learned from the presentence-investigation report that the
victims wanted maximum sentences. And at sentencing, neither Lawson nor Smith
mentioned an agreed ten-year term when Lawson raised with the court his concerns
about the maximum-sentence request.
{¶22} The court further noted that Lawson had denied in his stipulations
that he had misinformed Smith that he could plead no-contest and still argue self-
defense. To the contrary, Lawson insisted, he told Smith that he could assert “self-
defense” in mitigation of sentence, but that he could not establish the affirmative
defense of self-defense at a trial, because he could not demonstrate that he had not
been at fault in creating the circumstances giving rise to his use of a gun, and because
he had possessed the gun while under a disability. The court noted that during the
Crim.R. 11 colloquy, Smith had acknowledged his waiver of his rights to a jury trial,
to confront witnesses, and to challenge the evidence against him, and that the record
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did not show that he had been misled or tricked into relinquishing his these rights.
And the court concluded that Smith’s no-contest pleas had been accepted in full
conformity with Crim.R. 11.
{¶23} Smith appealed from the denial of his 2007 postconviction petition,
but the appeal was dismissed because he failed to timely file his appellate brief. See
State v. Smith, 1st Dist. Hamilton No. C-090215 (Sept. 29, 2009). Thereafter, he
unsuccessfully challenged his convictions in postconviction motions filed in 2013 and
2015. See State v. Smith, 1st Dist. Hamilton No. C-140421 (May 1, 2015) (affirming
the overruling of his 2013 Civ.R. 60(B) motion to merge allied offenses).
{¶24} Motion for a new trial. In 2017, Smith filed with the common
pleas court a Crim.R. 33 “Motion for Leave to File a Motion for New Trial,” along
with a proposed new-trial motion, seeking a “new trial” based on newly discovered
evidence of Lawson’s ineffectiveness due to drug addiction, including documents
concerning his felony conviction and the grievance and disciplinary proceedings
against him. We affirmed the overruling of that motion, upon our determination
that the common pleas court had no jurisdiction to entertain the motion. State v.
Smith, 1st Dist. Hamilton No. C-170431 (Aug. 28, 2018).
Motion to Withdraw No-Contest Pleas
{¶25} In 2017, Smith also filed the Crim.R. 32.1 motion to withdraw his no-
contest pleas from which this appeal derives. Smith alleged that his no-contest pleas
had been the unknowing, involuntary, and unintelligent product of Lawson’s
ineffectiveness, when (1) Smith “never elected to waive his right to a jury trial,” (2) he
could not have been convicted of having weapons under a disability based on his
juvenile-delinquency adjudication, and (3) Lawson, due to his drug abuse, was “[not]
in his right mind” and was incapable of “making sound decisions for and with
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OHIO FIRST DISTRICT COURT OF APPEALS
[Smith].” The motion was supported with affidavits made by Smith and Lawson in
2017.
{¶26} In his affidavit, Smith averred that his family had retained Lawson in
February 2006, and that his dissatisfaction with Lawson had begun when Lawson
did not visit him in jail or respond to his letters, conveyed through his grandmother,
concerning matters relevant to the investigation and preparation of his case. When
Smith voiced his dissatisfaction to his family, his grandmother “advised” him to stick
with Lawson because the family could not get back what they had paid for Lawson’s
representation.
{¶27} Smith averred that he had no communication with Lawson until
October 17, 2006, when Lawson met with him in a holding cell at the courthouse.
Smith presented Lawson with proposed “exhibits to put forth a defense [at] trial,”
containing some of the information that Smith had attempted to convey to Lawson
through his grandmother. But Lawson said that he had just spoken with the judge
and the assistant prosecuting attorney, that “he had reached a plea deal of ten[] years
in exchange for [a] plea of no-contest,” and that “some of the charges would be
dismissed.” According to Smith, Lawson’s “actions and demeanor [were] all rushed,”
and he was anxious to return to the courtroom to prepare the plea forms, giving
Smith little time to consider whether to accept the plea offer. Smith showed Lawson
photographs of his children and told Lawson that he wanted a trial, that he did not
want to admit to crimes he had not committed, and that his children needed him at
home. Lawson said, “[T]hese people upstairs don’t care if you did this or not, right
now they have someone to blame this on and that person is you.” Smith’s
grandmother and great aunt, Lawson insisted, asked him to convey to Smith their
desire that he “take the deal, [because] they [would rather] see [him] with 10 years
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OHIO FIRST DISTRICT COURT OF APPEALS
than 100½ years.” And Lawson added, “[Y]ou are still young, you have a whole life
ahead of you, you can take this 10 years go up the road get your education and you
will be 31 years old when you get out.”
{¶28} Smith further averred that at the plea hearing, Lawson had “advised
[him] to say yes to whatever the judge ask[ed] [him] or the judge was going to force
him to go to trial that same day.” Smith did as he was told, because he feared that
Lawson was not prepared to go to trial, and because his grandmother had, from the
beginning, instructed him to do what Lawson told him to do. Otherwise, Smith
asserted, he would have insisted on going to trial.
{¶29} In his affidavit, Lawson essentially recanted his 2007 “stipulations” as
characterized by the common pleas court in denying postconviction relief. He
averred that because he was “heavily addicted” to opiates when representing Smith,
he “could not be effective as counsel.” Lawson’s sobriety date was February 2, 2007,
and he averred that the final year of his addiction had been “almost a complete blur”:
he had a $1,000 per day habit, and if he went more than three hours without pills, he
would get “dope sick.” Lawson stated that he “[did not] doubt” Smith’s statements
concerning “promises” that Lawson had made or Smith’s “description” of what
Lawson had done and said, because “[m]ore than likely, [he] didn’t want to sit in
court getting dope sick,” and he “would say anything to anyone [to] continue to feed
[his] addiction.” Lawson also stated his willingness to testify concerning his
addiction and his “recollection of what happened in [the] case.”
Assignments of Error
{¶30} In this appeal from the overruling of his Crim.R. 32.1 motion, Smith
advances two assignments of error. In his first assignment of error, he contends that
the common pleas court abused its discretion in overruling his motion to withdraw
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his no-contest pleas without first conducting an evidentiary hearing. His second
assignment of error essentially challenges the denial of relief from his weapons-
under-disability conviction based on his claim concerning the use of his juvenile-
delinquency adjudication to prove that offense. The first assignment of error is well
taken in part.
{¶31} Jurisdiction to entertain the Crim.R. 32.1 motion. We note,
as a preliminary matter, that the ineffective-counsel claim presented in Smith’s
Crim.R. 32.1 motion to withdraw his no-contest pleas depended for its resolution
upon evidence outside the record of the proceedings leading to his convictions.
Thus, despite our affirmance in the direct appeal of the convictions based on those
pleas, the common pleas court had jurisdiction to entertain the motion. See State v.
West, 1st Dist. Hamilton No. C-150587, 2017-Ohio-5596, ¶ 6-22, following State v.
Davis, 131 Ohio St. 3d 1, 2011-Ohio-5028, 959 N.E.2d 516, and distinguishing Special
Prosecutors v. Judges, 55 Ohio St. 2d 94, 97, 378 N.E.2d 162 (1978).
{¶32} Standard of review. On a postsentence Crim.R. 32.1 motion to
withdraw a guilty or no-contest plea, the movant bears the burden of demonstrating
that withdrawing the plea was necessary “to correct manifest injustice.” Crim.R.
32.1; State v. Smith, 49 Ohio St. 2d 261, 361 N.E.2d 1324 (1977), paragraph one of the
syllabus. The decision to overrule the motion is committed to the sound discretion of
the trial court and may not be disturbed on appeal unless the court abused that
discretion. See Smith at paragraph two of the syllabus.
{¶33} The United States and Ohio Constitutions confer upon a criminal
accused the right to the effective assistance of counsel and the right to have one’s
guilt of charged offenses determined at a trial. See United States Constitution,
Article III, Section 2; the Sixth Amendment to the United States Constitution; Ohio
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Constitution, Article I, Section 10. For purposes of the Sixth Amendment right to the
effective assistance of counsel, a plea negotiation is a critical phase of a criminal
prosecution. Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985).
In support of his claims that his no-contest pleas had been the involuntary,
unknowing, and unintelligent product of Lawson’s ineffectiveness, Smith bore the
burden of demonstrating that Lawson’s performance was deficient in the sense that
he “was not functioning as the ‘counsel’ guaranteed * * * by the Sixth Amendment,”
Strickland v. Washington, 466 U.S. 668, 687-688, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984), and that there was a reasonable probability that, but for the deficiencies in
Lawson’s performance, Smith would not have pled no-contest, but would have
insisted on going to trial. Hill at 59; State v. Xie, 62 Ohio St. 3d 521, 524, 584 N.E.2d
715 (1992).
{¶34} Crim.R. 32.1 does not expressly require a court to hold a hearing on a
postsentence motion to withdraw a guilty or no-contest plea. But this court has
effectively adopted a rule that requires a hearing if the facts alleged in the motion,
and accepted as true by the court, would require that the plea be withdrawn. The
decision whether to hold a hearing is discretionary and may be reversed on appeal
only if the court abused its discretion. State v. Brown, 1st Dist. Hamilton No. C-
010755, 2002-Ohio-5813; accord West, 1st Dist. Hamilton No. C-150587, 2017-Ohio-
5596, at ¶ 37.
{¶35} The nature of that hearing is also discretionary with the court. See
West at ¶ 40; State v. Mynatt, 1st Dist. Hamilton Nos. C-100298 and C-100319,
2011-Ohio-1358, ¶ 19 and 23. The court need not conduct a full evidentiary hearing,
when the record reveals that the allegations of the new-trial motion are meritless.
State v. Norton, 1st Dist. Hamilton Nos. C-840415 and C-840896, 1985 WL 8950, *3
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(July 24, 1985). The court may also decide the motion in a “paper hearing,” if the
affidavit testimony upon which the motion depends is deemed by the court to lack
credibility, upon consideration of
all relevant factors, including (1) whether the judge reviewing the
motion also presided at the plea hearing, (2) whether multiple
affidavits contain nearly identical language or otherwise appear to
have been drafted by the same person, (3) whether the affidavit
contains or relies on hearsay, (4) whether the affiant is related to the
defendant or otherwise interested in the success of his efforts, (5)
whether the affidavit contradicts defense evidence, (6) whether the
affidavit is contradicted by any other sworn statement of the affiant,
and (7) whether the affidavit is internally inconsistent.
West at ¶ 38. See Mynatt at ¶ 18-20 (adopting for purposes of a Crim.R. 32.1 motion
the factors set forth in State v. Calhoun, 86 Ohio St. 3d 279, 714 N.E.2d 905 (1999),
for assessing affidavits submitted in support of a postconviction petition). Thus,
when a Crim.R. 32.1 motion, on its face, demonstrates substantive grounds for relief,
the record does not wholly negate the allegations of the motion, and the credibility of
the averments of the supporting affidavits cannot be wholly discounted, the
defendant is entitled to an evidentiary hearing on the motion.
{¶36} An evidentiary hearing was required. We hold that the
common pleas court did not abuse its discretion in failing to conduct a hearing on
Smith’s claims in his Crim.R. 32.1 motion challenging Lawson’s effectiveness
concerning the jury waiver or the sufficiency of the evidence to support his weapons-
under-disability conviction. An assignment of error challenging the validity of
Smith’s jury waiver was overruled in his direct appeal. Smith, 1st Dist. Hamilton No.
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C-060991, 2008-Ohio-2561, at ¶ 31-33. And using his prior juvenile adjudication to
prove his R.C. 2923.13(A)(2) weapons-under-disability offense did not violate the
due-process guarantees of the state or federal constitution. See State v. Carnes, 154
Ohio St. 3d 527, 2018-Ohio-3256, 116 N.E.3d 138, ¶ 21. Thus, Smith did not sustain
his burden of demonstrating those alleged deficiencies in Lawson’s performance.
{¶37} But we hold that the common pleas court abused its discretion in
declining to conduct an evidentiary hearing on the motion’s remaining claim, that
Lawson’s drug addiction had rendered him incapable of functioning as the counsel
guaranteed under the Sixth Amendment, and that but for the resultant deficiencies
in Lawson’s performance, Smith would have insisted on going to trial. The motion,
on its face, as supported by the 2017 affidavits of Smith and Lawson, demonstrated
substantive grounds for relief.
{¶38} The claim is not wholly disproved by the record. As we noted in our
decision remanding for an evidentiary hearing on Smith’s 2007 postconviction
petition, the record provided support for Smith’s allegations that Lawson had led
Smith to believe that, at the plea hearing, he could dispute the facts alleged in the
indictment, present his self-defense claim, and expect to be acquitted of some of the
offenses charged in the indictment. The record also bolstered Smith’s assertions that
he had not recently fabricated either his dispute over the facts alleged in the
indictment or his claim that he had acted in self-defense, and that Lawson had
neither communicated with Smith nor adequately investigated or prepared his case
before advising him to plead. And the record did not disprove Smith’s assertion that
Lawson had overridden his determination to go to trial by falsely representing that
his grandmother and great aunt supported the pleas. See Smith, 1st Dist. Hamilton
No. C-070624, 2008-Ohio-3789, at ¶ 24-28.
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{¶39} Nor could the common pleas court have wholly discounted the
credibility of Smith’s and Lawson’s affidavits. With reference to the Calhoun factors,
we note that the judge who reviewed Smith’s Crim.R. 32.1 motion had not presided
at his plea hearing. Smith’s and Lawson’s affidavits were internally consistent and
did not use identical language or otherwise suggest that they were drafted by the
same person. Both Smith and Lawson must be said to have had an interest in the
success of Smith’s motion to withdraw his pleas, Smith in vindicating his
constitutional rights to the effective assistance of counsel and a jury trial, and
Lawson in remedying what he perceived as an injustice. Finally, Smith’s affidavit
was based on first-hand knowledge and was consistent with the handwritten
document accompanying his notice of appeal in the direct appeal and with the
affidavit that he submitted in support of his postconviction petition. Lawson’s
affidavit was expressly not based on first-hand knowledge of his conduct in
counseling Smith’s pleas, but was based on first-hand knowledge of his capabilities at
the time. And Lawson’s admission that he could not recall what he had done, along
with his description of the final year of his addiction, may fairly be read to support
Smith’s contention in his motion that Lawson’s drug abuse had rendered him
incapable of “making sound decisions for and with [Smith].”
{¶40} Smith was entitled to an evidentiary hearing on his Crim.R. 32.1
motion when facts alleged in the motion, and accepted by the common pleas court as
true, would require that he be allowed to withdraw his no-contest pleas. We,
therefore, hold that the court abused its discretion when it overruled the motion
without an evidentiary hearing.
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We Reverse
{¶41} In light of the Ohio Supreme Court’s decision in Carnes, 154 Ohio
St.3d 527, 2018-Ohio-3256, 116 N.E.3d 138, Smith cannot be said to have
demonstrated the deficiency in Lawson’s performance alleged in his Crim.R. 32.1
motion concerning the use of his prior juvenile adjudication to prove his weapons-
under-disability offense. We, therefore, overrule the second assignment of error.
{¶42} But the court abused its discretion when it overruled the motion
without first conducting an evidentiary hearing on Smith’s claim that Lawson’s drug
addiction had rendered him incapable of functioning as the counsel guaranteed
under the Sixth Amendment. Accordingly, we sustain the first assignment of error,
reverse the judgment entered below, and remand this cause for further proceedings
consistent with the law and this opinion.
Judgment reversed and cause remanded.
CROUSE and WINKLER, JJ., concur
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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