State v. Strutton
| Decision Date | 02 November 1988 |
| Docket Number | No. 10902,10902 |
| Parties | The STATE of Ohio, Appellee, v. STRUTTON, Appellant. |
| Court | Ohio Court of Appeals |
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.
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.
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
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 hearing, granted the motion to dismiss, with prejudice. From the dismissal of his petition to vacate his sentence, Strutton appeals.
Strutton assigns the following errors:
Essentially, Strutton argues that in his petition he has alleged that ineffective assistance of counsel produced his guilty plea, and his failure to move to withdraw that guilty plea, with sufficient particularity to entitle him to a hearing.
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.
In his original petition, Strutton alleged that his original trial counsel failed to pursue the evidentiary lead represented by a letter that Strutton had supposedly received from the complainant's mother, in which the mother had written that her daughter had admitted that the charges against Strutton were groundless. That is certainly an important enough evidentiary lead to raise a question whether Strutton's original trial counsel met minimum standards of competence in failing to pursue that lead, assuming that Strutton succeeds, in a hearing, in establishing the facts that he has alleged.
Also troubling is Strutton's allegation that his original trial counsel, upon being asked to file a motion to withdraw Strutton's guilty plea, before sentencing, not only refused to do so, but threatened to withdraw as counsel if Strutton should decide to file his own motion, without informing Strutton that Strutton would have the right to secure appointed counsel for trial. If Strutton were to succeed in proving this allegation at a...
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