State v. Strutton, No. 10902

CourtOhio Court of Appeals
Writing for the CourtFAIN; BROGAN; KERNS; KERNS
Citation62 Ohio App.3d 248,575 N.E.2d 466
PartiesThe STATE of Ohio, Appellee, v. STRUTTON, Appellant.
Decision Date02 November 1988
Docket NumberNo. 10902

Page 248

62 Ohio App.3d 248
575 N.E.2d 466
The STATE of Ohio, Appellee,
v.
STRUTTON, Appellant.
No. 10902.
Court of Appeals of Ohio, Second District, Montgomery County.
Decided Nov. 2, 1988.

Page 249

Syllabus by the Court

1. A hearing is not automatically required whenever a petition for post-conviction relief is filed. The test is whether there are substantive grounds for relief that would warrant a hearing based upon the petition, the supporting affidavits and the files and records in the case. (State v. Jackson [1980], 64 Ohio St.2d 107, 110, 18 O.O.3d 348, 350, 413 N.E.2d 819, 822, followed.)

2. A defendant is prejudicially denied effective assistance of counsel when his attorney fails to act on his request to withdraw his plea of guilty when the possibility that he would have been allowed to withdraw his plea is not insubstantial.

Lee C. Falke, Pros. Atty. and George A. Katchmer, Jr., Asst. Pros. Atty., Dayton, for appellee.

Willard R. Strutton, pro se, appellant.

[575 N.E.2d 467] FAIN, Judge.

Defendant-appellant, Willard Strutton, appeals from a judgment dismissing his petition for post-conviction relief, with prejudice. Strutton contends that in his petition for relief he alleged that his guilty plea was the product of ineffective assistance of counsel with sufficient particularity to entitle him to a hearing. We agree. Accordingly, the dismissal of Strutton's petition for post-conviction relief will be reversed, and this cause will be remanded for a hearing on the merits.

Page 250

I

Strutton was charged with eight counts of rape, and four counts of gross sexual imposition (the latter four counts with a specification of violence), all of which allegedly involve a person not his spouse, less than thirteen years of age. Pursuant to a plea bargain, Strutton pled guilty to one count of rape and one count of gross sexual imposition with a violence specification. Strutton was sentenced to incarceration for five to twenty-five years for rape and two to ten years for gross sexual imposition, the sentences to run concurrently.

Strutton filed a motion to vacate his plea and sentence, pro se. Subsequently, Strutton's appointed counsel obtained leave to file, and did file, an amended petition to vacate sentence.

In Strutton's original petition, he alleged with some particularity that his original trial counsel failed to consider, as an evidentiary lead, a letter from the complainant's mother in which the mother stated that the complainant had admitted that the charges against Strutton were false. In Strutton's amended petition, this specific claim is replaced with a more general allegation that Strutton's original trial counsel "was aware of certain statements made by a prosecution witness (the mother of the victim) which were not consistent with statements made to the prosecuting attorney, however * * * [Strutton's original trial counsel] failed to investigate or properly pursue this matter. Instead, * * * [Strutton's original trial counsel] coerced Petitioner to plead guilty to the charge."

Furthermore, in both his original petition which he filed pro se and in his amended petition, Strutton alleged that after he pled guilty but before he was sentenced, he told his original trial counsel that he wanted to withdraw his plea, but that his original trial counsel became upset with him, refused to participate in any withdrawal of the plea, and also said that if Strutton insisted on seeking to withdraw his plea, trial counsel would withdraw as Strutton's counsel. Strutton alleged, in both his original and amended petitions, that he believed he would be forced, as a result of his original trial counsel's withdrawal, to proceed to trial without an attorney, and that his reluctance to do so was responsible for his acquiescence in his trial counsel's insistence that he not seek to withdraw his plea.

The state moved to dismiss Strutton's amended petition to vacate his sentence, and the trial court, without a...

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163 practice notes
  • Eggers v. Warden, Case No. 3:14-cv-443
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • June 1, 2015
    ...would warrant a hearing based upon the petition, the supporting affidavits and the files and records in the case." State v. Strutton, 62 Ohio App.3d 248, 251, 575 N.E.2d 466 (2d Dist.1988), citing State v. Jackson, 64 Ohio St.2d 107, 110, 413 N.E.2d 819 (1980). A court may overrule the peti......
  • State v. Wiley Davis, 98-LW-4773
    • United States
    • United States Court of Appeals (Ohio)
    • October 8, 1998
    ...warrant a hearing based upon the petition, the supporting affidavits and the files and records of the case. State v. Strutton (1988), 62 Ohio App.3d 248, 251; State v. Swotcheck, supra at 772. Moreover, where the petitioner asserts a claim of ineffective assistance of counsel, he bears the ......
  • State v. Wynn, No. 73805.
    • United States
    • United States Court of Appeals (Ohio)
    • December 21, 1998
    ...and the files and records of the case. State v. Swortcheck (1995), 101 Ohio App.3d 770, 656 N.E.2d 732; State v. Strutton (1988), 62 Ohio App.3d 248, 575 N.E.2d 466. This court in Swortcheck stated at 772-773, 656 N.E.2d at "When determining whether there are substantive grounds for postcon......
  • State v. Calhoun, No. 98-1627.
    • United States
    • United States State Supreme Court of Ohio
    • September 1, 1999
    ...to contact Attorney Zeid, Attorney Zeid essentially refused. The court of appeals compared this case to State v. Strutton (1988), 62 Ohio App.3d 248, 575 N.E.2d 466. However, as Judge Christley observed in her dissent below, Strutton is clearly distinguishable. Defendant Strutton alleged th......
  • Request a trial to view additional results
163 cases
  • Eggers v. Warden, Case No. 3:14-cv-443
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • June 1, 2015
    ...would warrant a hearing based upon the petition, the supporting affidavits and the files and records in the case." State v. Strutton, 62 Ohio App.3d 248, 251, 575 N.E.2d 466 (2d Dist.1988), citing State v. Jackson, 64 Ohio St.2d 107, 110, 413 N.E.2d 819 (1980). A court may overrule the peti......
  • State v. Wiley Davis, 98-LW-4773
    • United States
    • United States Court of Appeals (Ohio)
    • October 8, 1998
    ...warrant a hearing based upon the petition, the supporting affidavits and the files and records of the case. State v. Strutton (1988), 62 Ohio App.3d 248, 251; State v. Swotcheck, supra at 772. Moreover, where the petitioner asserts a claim of ineffective assistance of counsel, he bears the ......
  • State v. Wynn, No. 73805.
    • United States
    • United States Court of Appeals (Ohio)
    • December 21, 1998
    ...and the files and records of the case. State v. Swortcheck (1995), 101 Ohio App.3d 770, 656 N.E.2d 732; State v. Strutton (1988), 62 Ohio App.3d 248, 575 N.E.2d 466. This court in Swortcheck stated at 772-773, 656 N.E.2d at "When determining whether there are substantive grounds for postcon......
  • State v. Calhoun, No. 98-1627.
    • United States
    • United States State Supreme Court of Ohio
    • September 1, 1999
    ...to contact Attorney Zeid, Attorney Zeid essentially refused. The court of appeals compared this case to State v. Strutton (1988), 62 Ohio App.3d 248, 575 N.E.2d 466. However, as Judge Christley observed in her dissent below, Strutton is clearly distinguishable. Defendant Strutton alleged th......
  • Request a trial to view additional results

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