State v. Hull

• Decision Date: 07 January 2019
• Docket Number: CASE NO. 2018-L-050
• Parties: STATE OF OHIO, Plaintiff-Appellee, v. FLOYD J. HULL, SR., Defendant-Appellant.
• Court: Ohio Court of Appeals

2019 Ohio 23

STATE OF OHIO, Plaintiff-Appellee, v. FLOYD J. HULL, SR., Defendant-Appellant.

CASE NO. 2018-L-050

COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO

January 7, 2019

OPINION

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} "** * {¶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.

{¶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 toldhim 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 theaddition 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...