Lovell v. Duffey, 08-3142

• Decision Date: 06 January 2011
• Docket Number: No. 08-3142,08-3142
• Parties: Joy Lovell, Petitioner-Appellee, v. Sherri Duffey, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Joy Lovell, Petitioner-Appellee,

v.Sherri Duffey, Respondent-Appellant.

No. 08-3142

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Argued: June 10, 2010

Decided and Filed: January 6, 2011

Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 07-00732—Sandra S. Beckwith, District Judge.

Before: GILMAN and WHITE, Circuit Judges; THAPAR, District Judge.^*

COUNSEL

ARGUED: M. Scott Criss, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant.

Christopher J. Pagan, REPPER, PAGAN, COOK, LTD., Middletown, Ohio, for Appellee.

ON BRIEF: M. Scott Criss, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant.

Christopher J. Pagan, REPPER, PAGAN, COOK, LTD., Middletown, Ohio, for Appellee.

GILMAN, J., delivered the opinion of the court, in which THAPAR, D. J., joined. WHITE, J. (pp. 19-23), delivered a separate dissenting opinion.

OPINION

RONALD LEE GILMAN, Circuit Judge.

Sherri Duffey, Warden of the Ohio Reformatory for Women in Marysville, Ohio, appeals the district court's issuance of a conditional writ of habeas corpus to Joy Lovell. The writ was granted on the ground that Lovell's attorney was ineffective in failing to advise her of the potential adverse consequences of rejecting the state prosecutor's plea offer. According to the district court, Lovell should be resentenced by the state trial court under the terms of the rejected offer. For the reasons set forth below, we REVERSE the judgment of the district court and reinstate Lovell's conviction and sentence.

I. BACKGROUND

The parties do not dispute the district court's statement of the relevant facts and procedural background. They are as follows:

A. Factual and procedural background

In April 2003, Lovell was charged by the state of Ohio with aggravated drug trafficking and the offense of permitting drug abuse, felony offenses that carried a mandatory prison term of one to five years. The State made a plea offer to Lovell before her trial that allowed her "to plead guilty to a reduced charge, which did not carry a mandatory prison term and thus rendered her eligible to receive probation." Lovell rejected this plea offer and chose instead to proceed to trial. She was found guilty of the drug-related offenses and was sentenced "to the minimum mandatory prison sentence of one (1) year for the trafficking offense and a concurrent six (6) month term of imprisonment for the permitting drug abuse offense."

After Lovell obtained new counsel, she timely filed a notice of appeal with the Ohio Court of Appeals, which stayed her sentence pending appeal. The Ohio Court of Appeals then granted Lovell's motion to transfer jurisdiction to the trial court, where shefiled a motion for a new trial in September 2003 pursuant to Rule 33(A) of the Ohio Rules of Criminal Procedure. Her motion was based on a claim that her trial counsel provided ineffective assistance when he "did not properly convey to [her] all the implications and ramifications of the plea bargain offer."

Lovell's ineffective-assistance-of-counsel claim focused on the allegation that her trial counsel did not inform Lovell that the reduced charges in the State's plea-bargain offer "would render her offenses probationable, whereas a conviction as charged would require mandatory prison time." Lovell claimed that if she had known that the charges against her carried mandatory prison time, she would have accepted the State's proposed plea offer. She attested in a supporting affidavit as follows: "At no time during the discussion did my attorney explain to me that if I was convicted as charged, prison time would be mandatory, and that if I pleaded guilty pursuant to the plea agreement, I would be eligible for probation. At that time, I turned down the plea bargain." Lovell also stated that, a few days prior to her sentencing hearing, her trial counsel told her that "it was quite possible that the court would give me probation in my case."

After holding a hearing on Lovell's motion for a new trial, the trial court denied the motion, concluding that "[t]he fact that her attorney did not advise her of the potential ramifications of a guilty verdict is not a basis for a new trial under [Ohio] Criminal Rule 33(A)." In August 2004, the Ohio Court of Appeals affirmed, on an accelerated appeal, the trial court's judgment that the "appellant did not receive the ineffective assistance of counsel." It explained that "the state reportedly made an offer to appellant that would allow her to plea to charges wherein a prison term would not be mandatory. The plea was rejected by appellant...." It also noted that she "filed a motion for a new trial and introduced her testimony about conversations between [herself] and her counsel." After the court of appeals rejected Lovell's claim, the Ohio Supreme Court dismissed the appeal in December 2004 because it did not involve "any substantial constitutional question."

While her appeal of the trial court's ruling on her motion for a new trial was pending in the Ohio Court of Appeals, Lovell obtained the assistance of still another attorney. The new counsel filed a petition for postconviction relief in June 2004, based on the same ineffective-assistance-of-counsel claim that was raised in her motion for a new trial. In May 2006, the trial court granted the State's motion to dismiss this new petition because the ineffective-assistance-of-counsel claim had already been decided by the Ohio Court of Appeals on direct appeal. Lovell then appealed in a consolidated appeal to the Ohio Court of Appeals both the trial court's dismissal of her petition for postconviction relief and the trial court's June 2006 denial of a motion to vacate her sentence. She argued that her petition for postconviction relief was not barred by res judicata because the Ohio Court of Appeals had failed to articulate its rationale for affirming the trial court on direct appeal.

In August 2007, the Ohio Court of Appeals again affirmed the trial court's dismissal of Lovell's petition for postconviction relief because it was "apparent from the facts recited in this court's accelerated calendar judgment entry that we found that appellant's attorney communicated the details of the plea offer to appellant and that she rejected that offer." The Ohio Court of Appeals further held that although "appellant argues that her claim of ineffective assistance of counsel, made under her Crim. R. 33 motion for a new trial[,] is considered different from the same claim made in her petition for postconviction relief, it is clear that the issue was raised and rejected by this court in appellant's consolidated appeal. Therefore, the issue is barred by res judicata and the trial court properly denied appellant's petition for postconviction relief on that basis."

Lovell did not appeal the August 2007 decision of the Ohio Court of Appeals to the Ohio Supreme Court. She instead filed a petition for a writ of habeas corpus in the district court in September 2007 and began serving her sentence in November 2007. The court held an evidentiary hearing the following month on Lovell's ineffective-assistance-of-counsel claim. On December 21, 2007, it conditionally granted the writ, ordered that Lovell be immediately released from prison, and determined that she should be resentenced pursuant to the State's proposed plea offer that she hadoriginally declined. The court released Lovell on her own recognizance bond pending the present appeal.

B. Lovell's ineffective-assistance-of-counsel claim

1. Lovell's September 2003 sentencing hearing and her October 2003 hearing on her motion for a new trial

The issue of whether Lovell knew that the charges against her carried mandatory prison time first appeared on the state trial-court record at her sentencing hearing in September 2003. Lovell was asked by the court whether she understood that prison time is mandatory in this case. She responded in the negative. When the court inquired again as to whether she understood the mandatory nature of her sentence, Richard Hurchanik, her trial counsel, responded that he thought she did understand. But Hurchanik also noted that her husband had informed Hurchanik that she has some mental problems. Lovell then added that she has "also had car accidents." Later in the sentencing, the court again brought up whether Lovell knew about the mandatory prison time associated with the charges against her. The following exchange occurred:

THE COURT: Did she not know this was mandatory time?

THE DEFENDANT: No, I did not know it.

Mr. HURCHANIK: It was discussed once upon a time, but that was before trial, Your Honor.

THE DEFENDANT: I didn't know about that.

Still later, the court asked: "In the mean time—you didn't know it was a mandatory sentence?" Lovell responded: "I didn't know...."

As further support for her claimed ignorance of the mandatory prison sentence, Lovell submitted to the district court an affidavit from Judge Matthew Crehan, the state sentencing judge, attesting to the fact that at her sentencing hearing "Lovell expressed complete surprise about the mandatory prison requirement" and that her "demeanor was consistent with someone who was shocked and surprised." Judge Crehan further explained in his affidavit that he thought, given Lovell's demeanor, that she "wasunaware that she was indicted on a charge that required a mandatory prison sentence and that the plea bargain would have eliminated the mandatory prison sentence."

If Lovell had accepted the State's plea offer, Judge Crehan averred that he would have likely sentenced her to probation. But he denied her motion for a new trial in 2003 because he reasoned that her lack of knowledge concerning the mandatory sentence "did not render [her] trial unfair or deficient." Judge Crehan's affidavit was prepared in October 2007, over four years after Lovell's sentencing hearing and also after all of her proceedings in the state courts had concluded. The district court...