Hearn v. Warden, Belmont County Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

:

Jonathan Hearn, :

: Case No. 2:22-cv-2916

Petitioner, :

v. : Judge Graham

:

Warden, Belmont Correctional : Magistrate Judge Silvain

Institution, :

:

Respondent. :

OPINION & ORDER

This matter is before the Court upon Petitioner Jonathan Hearn’s objections (ECF No. 12)

to the Magistrate Judge’s Report and Recommendation (“R&R”) (ECF No. 10), which

recommended dismissal of the instant habeas action on the basis of procedural default.1 Because

the Court finds merit in Petitioner’s objections, the Court SUSTAINS the same, to the extent set

forth herein. Accordingly, the Court GRANTS the petition for writ of habeas corpus (ECF No. 1).

Due to incorrect information in the written plea agreement, Petitioner Jonathan Hearn

(“Petitioner”) entered his guilty pleas believing he would be eligible for Ohio’s statutory sentence-

reduction opportunities, such as a judicial release and credit for program participation (often

known as “good time credit”). See, e.g., O.R.C. § 2929.20; O.R.C. § 2967.193; O.R.C. § 2967.194.

But due to his criminal history, Petitioner was in fact categorically ineligible for such programs,

and he thus received sentences that could not be so reduced. See O.R.C. § 2929.13(F)(6). The

misleading plea agreement was never corrected during the plea and sentencing hearing. In fact, the

record indicates that Petitioner was never advised of the mandatory—i.e., irreducible—nature of

the sentence he faced. He therefore entered the plea agreement with a fundamental

1 In the same order, the Magistrate Judge also granted Petitioner’s motion to expand the record. See ECF No. 8, 36.

misunderstanding of “the relevant circumstances and likely consequences.” Brady v. United States,

397 U.S. 742, 748, 90 S. Ct. 1463, 1469, 25 L. Ed. 2d 747 (1970). Because the Due Process Clause

requires that a guilty plea be entered knowingly and voluntarily, Petitioner’s plea must be vacated.

McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 1171, 22 L. Ed. 2d 418 (1969) (“[I]f

a defendant's guilty plea is not equally voluntary and knowing, it has been obtained in violation of

due process and is therefore void.”).

PROCEDURAL POSTURE

This is a pro se habeas corpus action brought under 28 U.S.C. § 2254. Petitioner filed his

petition for writ of habeas corpus on July 25, 2022. ECF No. 1. Respondent filed a return of writ,

along with the state court record, on September 27, 2022. ECF No. 6; ECF No. 5. Thereafter, the

Magistrate Judge conducted an initial screening of the petition, as set forth in the R&R filed

September 14, 2023. R&R, ECF No. 10; See RULES GOVERNING SECTION 2254 CASES IN THE

UNITED STATES DISTRICT COURTS, 4 (describing screening procedure) and Am. Columbus Gen.

Order 22-01, filed February 1, 2022 (referring initial habeas screens to magistrate judges). The

Magistrate Judge concluded that the petition should be dismissed because the two (2) claims upon

which the petition is based are both procedurally defaulted, and Petitioner cannot make the

requisite showing to excuse the procedural default. R&R, 25.

Petitioner filed objections on November 6, 2023. ECF No. 12. Respondent did not file any

objections and did not file a response to Petitioner’s objections; however, Respondent argued for

dismissal in its return of writ. ECF No. 6. When a party raises timely objections to a magistrate

judge’s report and recommendation, the court “shall make a de novo determination of those

portions of the report or specified proposed findings or recommendations to which objection is

made.” 28 U.S.C. § 636(b)(1)(C).

DISCUSSION

Petitioner raises two (2) grounds for relief. The Court will first address Petitioner’s claim

(raised as “Ground Two” in the petition) that his guilty plea was not made knowingly, intelligently,

or voluntarily (hereinafter sometimes referred to as “trial error”). ECF No. 1, PAGEID # 35. Next,

the Court will address Petitioner’s claim (raised as “Ground One” in the petition) that he received

ineffective assistance of appellate counsel. Id. at PAGEID # 33. Importantly, Petitioner’s claim of

ineffective assistance of appellate counsel alleges that his appellate counsel was ineffective for

failing to raise, on direct appeal, the issues which constitute the trial error. Id.

Petitioner entered his plea on February 12, 2020, and was sentenced on the same day. The

trial court memorialized the plea and sentence in a journal entry dated February 21, 2020, which

stated a “mandatory sentence of fourteen (14) years” for Petitioner. ECF No. 5, PAGEID # 77.

However, while Petitioner’s direct appeal was pending, the trial court filed a nunc pro tunc entry

on May 6, 2020, purporting to “correct an error” in the original sentencing entry. Id. at PAGEID

# 80. On June 22, 2020, with Petitioner’s appeal still pending, the trial court filed another nunc pro

tunc “to correct an error in the Amended Entry previously filed.” Id. at PAGEID # 88.2

For the relevant procedural history of Petitioner’s direct appeal and subsequent challenges

to his sentence, the Court turns to the Magistrate Judge’s summary, set forth as follows:

A. Direct Appeal

On March 9, 2020, Petitioner, proceeding pro se, filed a timely

notice of appeal to the Ohio Fourth District Court of Appeals. (Doc. 5 at

PAGEID # 96-106.) The appellate court appointed counsel for Petitioner,

and Petitioner raised three assignments of error:

First Assignment of Error: The trial court did not have

jurisdiction to resentence defendant-appellant.

2 The specific corrections made in the nunc pro tunc entries are not pertinent to this opinion except to the extent that

they signal confusion on the part of the sentencing court.

Second Assignment of Error: The defendant-appellant’s

plea was involuntary and must be vacated.

Third Assignment of Error: The indefinite sentencing

scheme adopted by the Reagan Tokes Act is an

unconstitutional violation of separation of powers, such

that defendant’s sentence must be vacated.

(Id. at PAGEID # 110.)

On February 22, 2021, the state appellate court issued a decision

sustaining Petitioner’s first assignment of error and overruling Petitioner’s

second and third assignments of error. (Id. at PAGEID # 151-69.) With

respect to the first assignment of error, the appellate court determined that

the trial court’s amended sentencing entries were “legal nullities” because

the trial court no longer had jurisdiction to act once the notice of appeal

was pending. (Id. at PAGEID # 158.) The court of appeals remanded the

case to the trial court, authorizing the trial court to file new amended

sentencing entries, because “generally nothing precludes a trial court from

filing amended entries after a remand.” (Id.)

Petitioner did not appeal the decision of the Fourth District Court

of Appeals to the Ohio Supreme Court, and his filing deadline expired

April 8, 2021.

B. Amended Sentencing Entry

On March 15, 2021, and pursuant to the remand from the court of

appeals, the trial court filed an amended sentencing order correcting

Petitioner’s original sentencing entry. (Doc. 5, at PAGEID # 349-56.)

Petitioner did not appeal the amended sentencing entry.

C. Post-Conviction

On July 29, 2020, Petitioner, proceeding pro se, filed a post-

conviction action seeking to vacate or set aside his conviction. (Doc. 5, at

PAGEID # 199-223.) Petitioner set forth three claims for relief all

asserting ineffective assistance of trial counsel:

Claim One: [Petitioner] was deprived of [his] Sixth

Amendment right to counsel because trail [sic] counsel was

ineffective.

Claim Two: [Petitioner] was deprived of [his] Sixth

Amendment right to effective assistance of counsel, right

to a speedy and public trail [sic], right to call witnesses in

[his] defense.

Claim Three: [Petitioner] was denied the 5th and

Fourteenth and the Sixth was denied due process and right

to efftive [sic] assistance of counsel.

(Id. at PAGEID 202, 209, 214.).

On August 18, 2020, the trial court denied the petition for

postconviction relief, finding Petitioner “made a knowing, intelligent, and

voluntary guilty plea in the presence of counsel and the Court,” and

Petitioner’s plea “waived any claim that his counsel was ineffective.” (Id.

at PAGEID # 262.)

Petitioner did not appeal the trial court’s decision denying post-

conviction relief.

D. Rule 26(B) Application to Reopen Appeal.

On April 26, 2021, Petitioner filed a pro se application to reopen

his direct appeal pursuant to Ohio App. R. 26(B). (Doc. 5, at PAGEID #

170-86.) Petitioner alleged appellate counsel provided ineffective

assistance of counsel on direct appeal by failing to raise the following

claim:

The trial court erred in the prejudice of appellant in its

acceptance of a guilty plea which was not knowing,

intelligent and voluntary, in violation of appellant’s due

process rights under the Fifth and Fourteenth Amendments

to the United States Constitution and Article I, Section 16

[of] the Ohio Constitution.

(Id. at PAGEID # 172.) The gist of Petitioner’s claim was that appellate

counsel should have alleged that the trial court erred by “misadvising him

of the mandatory nature of his prison term” and “advising him that, before

he serves his maximum prison term, he may be eligible to earn credit

against his prison term and be eligible for early release.” (Id. at PAGEID

# 192.)

On September 28, 2021, the state appellate court declined to reopen

the direct appeal, finding Petitioner failed to establish a genuine issue as

to whether he was deprived of the effective assistance of counsel on direct

appeal. (Id. at 187-98.) Petitioner had until November 12, 2021, to appeal

the decision of the court of appeals denying his Rule 26(B) application.

The Ohio Supreme Court refused to consider Petitioner’s appeal, because

it was received three days late, on November 15, 2021. (Doc. 8, at

PAGEID # 520.)

E. Motion to Withdraw Plea

On March 15, 2021, Petitioner filed a motion to withdraw his guilty

plea. (Doc. 5, at PAGEID # 299.) On March 17, 2021, the trial court denied

the motion. (Id. at PAGEID # 348.) Petitioner did not appeal the trial

court’s decision.

F. Second Motion to Withdraw Plea

On November 19, 2021, Petitioner filed a second motion to

withdraw his guilty plea. (Doc. 5 at PAGEID # 357-58.). On May 24,

2022, the trial court denied the motion. (Id. at PAGEID # 359.) Petitioner

did not file a notice of appeal.3

R&R, 3-6. Additionally, the Magistrate Judge thoroughly and accurately outlined the applicable

law regarding federal habeas petitions and the doctrine of procedural default:

[AEDPA]

Because this is a habeas corpus case, provisions of the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

Pub.L. 104-132, 110 Stat. 1214, apply to this case. See Lindh v. Murphy,

521 U.S. 320, 336 (1997). The AEDPA limits the circumstances under

3 This appears to be incorrect, as the state court record shows that Petitioner filed a notice of appeal on June 22, 2022.

ECF No. 5, PAGEID # 382. The Court takes judicial notice of the docket for case number 19CR000511 in the

Washington County Court of Common Pleas, which indicates that this appeal was dismissed as moot.

which a federal court may grant a writ of habeas corpus with respect to

any claim that was adjudicated on the merits in a state court proceeding.

Specifically, under AEDPA, a federal court shall not grant a writ unless

the state court adjudication “resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States,” 28 U.S.C. §

2254(d)(1), or “was based on an unreasonable determination of the facts

in light of the evidence presented in the State court proceeding,” 28 U.S.C.

§ 2254(d)(2). Section 2254(d)(1) circumscribes a federal court’s review of

claimed legal errors, while § 2254(d)(2) places restrictions on a federal

court’s review of claimed factual errors. This standard is “intentionally

difficult to meet.” Woods v. Donald, 575 U.S. 312, 316 (2015).

Additionally, this Court’s habeas review is limited to the record that was

before the state court that adjudicated the claim on the merits. Cullen v.

Pinholster, 563 U.S. 170 (2011).

[Procedural Default]

In recognition of the equal obligation of the state courts to protect

the constitutional rights of criminal defendants, and in order to prevent

needless friction between the state and federal courts, a state criminal

defendant with federal constitutional claims is required to first present

those claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c).

If the prisoner fails to do so, but still has an avenue open to present the

claims, then the petition is subject to dismissal for failure to exhaust state

remedies. Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (citing

Picard v. Connor, 404 U.S. 270, 275-78 (1971)). Where a petitioner has

failed to exhaust claims but would find those claims barred if later

presented to the state courts, “there is a procedural default for purposes of

federal habeas.” Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991).

Over time, the term “procedural default” has come to describe a

situation where a person convicted of a crime in a state court fails (for

whatever reason) to properly present a particular claim to the highest court

of the state so that the state has a fair chance to correct any errors made in

the course of the trial or the appeal, before a federal court intervenes in the

state criminal process. This “requires the petitioner to present ‘the same

claim under the same theory’ to the state courts before raising it on federal

habeas review.” Hicks v. Straub, 377 F.3d 538, 552-53 (6th Cir. 2004)

(quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)). One of the

aspects of “fairly presenting” a claim to the state courts is that a habeas

petitioner must do so in a way that gives the state courts a fair opportunity

to rule on the federal law claims being asserted. That means that if the

claims are not presented to the state courts in the way in which state law

requires, and the state courts therefore do not decide the claims on their

merits, neither may a federal court. As the Supreme Court found in

Wainwright v. Sykes, 433 U.S. 72, 87 (1977), “contentions of federal law

which were not resolved on the merits in the state proceeding due to [the]

failure to raise them there as required by state procedure” also cannot be

resolved on their merits in a federal habeas case – that is, they are

“procedurally defaulted.” It is well settled that “[a] common example of a

procedural default is a failure to raise a claim in state court in a timely

manner.” Gibbs v. Huss, 12 F.4th 544, 550 (6th Cir. 2021).

To determine whether procedural default bars a habeas petitioner’s

claim, courts in the Sixth Circuit engage in a four-part test. See Maupin v.

Smith, 785 F.2d 135, 138 (6th Cir. 1986); see also McNeill v. Bagley, 10

F.4th 588, 595 (6th Cir. 2021) (citing the four-part Maupin standard). First,

the court must determine whether there is a state procedural rule that is

applicable to the petitioner’s claim and whether the petitioner failed to

comply with the rule. Second, the court must determine whether the state

courts actually enforced the state procedural sanction. Third, the court

must determine whether the forfeiture is an adequate and independent state

ground on which the state can rely to foreclose review of a federal

constitutional claim. Finally, if the court determines that a state procedural

rule was not complied with and the rule has an adequate and independent

state ground, then the petitioner may still obtain review of his or her claims

on the merits if the petitioner establishes: (1) cause sufficient to excuse the

default and (2) that he or she was actually prejudiced by the alleged

constitutional error. Maupin, 785 F.2d at 138. In order to establish cause,

a petitioner must show that “some objective factor external to the defense”

impeded the petitioner’s efforts to comply with the state’s procedural rule.

Murray v. Carrier, 477 U.S. 478, 488 (1986). The petitioner bears the

burden of showing cause and prejudice. Hinkle v. Randle, 271 F.3d 239,

245 (6th Cir. 2001).

R&R, 7-9, ECF No. 10. Petitioner and Respondent each offer summaries of the law consistent with

that set forth above; in other words, there appears to be no dispute as to the applicable law and

standard of review.

Based on the above procedural history and relevant law, the Magistrate Judge determined

that both claims were procedurally defaulted. Id. at 15. However, the Magistrate Judge further

concluded that Petitioner could establish cause sufficient to excuse his procedural default due to

prison mailroom delays which stymied his efforts to exhaust his state court remedies. Id. at 19.

Naturally, Petitioner does not object to that conclusion. However, the Magistrate Judge determined

that Petitioner could not establish prejudice. Id. at 25. The Court construes Petitioner’s objections

as primarily disputing the no-prejudice conclusion.4

With regard to the procedural default analysis, Petitioner’s grounds for relief take on a

nesting-doll character, as illustrated by the following passages in the R&R:

In this case, Petitioner committed more than one procedural

default… Here, Petitioner failed to raise the underlying claim of trial

4 Petitioner also objected to the Magistrate Judge’s summary of the facts and procedural history. The Court considers

Petitioner’s objections in that regard to be, effectively, another means of disputing the Magistrate Judge’s conclusion

that he could not establish prejudice, which is the only substantive legal holding at issue.

court error set forth as his second claim for relief on direct appeal. Further,

once Petitioner sought to assert a claim of ineffective assistance of

appellate counsel for failing to raise that claim of trial court error on direct

appeal, Petitioner did not timely appeal the adverse decision of the court

of appeals dismissing his Rule 26(B) application…

Because the Undersigned has determined Petitioner cannot

establish prejudice resulting from appellate counsel’s failure to raise the

substantive claim of trial court error in connection with the plea,

Petitioner cannot establish the required prejudice to excuse the default of

his ineffective assistance of appellate counsel claim set forth as his first

claim for relief. Because that ineffective assistance of appellate counsel

claim is defaulted, that claim cannot excuse the procedural default of the

substantive claim of trial court error set forth as the second claim for relief

in these habeas proceedings.

Id. at 15, 25. As noted, the Court agrees with and adopts the Magistrate Judge’s summation of the

applicable law and his determination that both claims were procedurally defaulted; however, the

Court reaches a different conclusion as to whether Petitioner has made the requisite showing to

excuse his procedural default.

The Court will first consider whether Petitioner’s plea was made voluntarily, knowingly,

and intelligently. If Petitioner can establish a constitutional error in the trial court’s acceptance of

his plea, and that he was prejudiced by such error, the Court must next consider whether

Petitioner’s appellate counsel was objectively unreasonable for failing to raise the issue of the

constitutional defect on direct appeal. On the other hand, if the plea is determined to be

constitutionally sound, or if Petitioner establishes a constitutional error but cannot demonstrate a

prejudicial effect therefrom, both claims in the instant petition must fail, because (as the Magistrate

Judge concluded) Petitioner would be unable to show that his appellate counsel was objectively

unreasonable for failing to raise an issue where there was none. See Wells v. Potter, No. 16-4133,

2018 WL 1614273, at *2 (6th Cir. Jan. 24, 2018) (“[Petitioner] does not show that appellate

counsel was ineffective for failing to raise a claim on appeal if the underlying claim itself lacks

merit.”). The Magistrate Judge began his analysis on the other end (reflecting the order in which

the claims are presented in the petition) by first addressing the claim of appellate error. However,

as the R&R demonstrates, the prejudice analysis for a claim of ineffective assistance of appellate

counsel “necessarily involves an examination of the merits of the underlying claim.” ECF No. 10,

19. The claims are mutually dependent on one another, but all roads lead to the guilty plea. This

Court thus begins at the beginning.

I. Petitioner’s Claim That His Plea Was Involuntary (“Trial Error”)

To comport with the due process mandates of the Fourteenth Amendment, a guilty plea

must be entered voluntarily and intelligently. Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct.

1709, 1711, 23 L. Ed. 2d 274 (1969). A plea is entered voluntarily and intelligently when the

defendant has “sufficient awareness of the relevant circumstances and likely consequences.” Brady

v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 1469, 25 L. Ed. 2d 747 (1970). More

specifically, the defendant must be apprised “of the direct consequences of the plea”; but “the trial

court is under no constitutional obligation to inform the defendant of all the possible collateral

consequences of the plea.” King v. Dutton, 17 F.3d 151, 153 (6th Cir. 1994). When distinguishing

between a direct versus collateral consequence, the Sixth Circuit has described the latter as “one

that remains beyond the control and responsibility of the district court in which that conviction

was entered.” Kratt v. Garvey, 342 F.3d 475, 485 (6th Cir. 2003). A plea can only be voluntary if

the defendant is aware of the maximum possible sentence for the offenses to which they are

pleading. King, 17 F.3d at 154. Thus, consideration of the voluntariness of Petitioner’s plea

requires the Court to consider the relevant criminal statutes and applicable sentencing provisions

of Ohio law.

A. Ohio’s Sentencing Scheme

In Ohio, the Reagan Tokes Law (“RTL”) adds an extra wrinkle to the determination of a

defendant’s maximum sentence for certain offenses. O.R.C. § 2901.011. The RTL requires Ohio

courts to impose indefinite sentences for most first- and second-degree felonies, such that an

offender’s sentence for such felonies will be stated in the form of “minimum” and “maximum”

terms of incarceration. O.R.C. § 2929.14. The minimum term is “selected by the court” from the

relevant terms of years set forth in the statute.5 Id. However, the maximum term is determined by

the procedure set forth in O.R.C. § 2929.144, which provides, as relevant to the instant case:

(2) If the offender is being sentenced for more than one felony, if

one or more of the felonies is a qualifying felony of the first or

second degree, and if the court orders that some or all of the prison

terms imposed are to be served consecutively, the court shall add all

of the minimum terms imposed on the offender under division

(A)(1)(a) or (2)(a) of section 2929.14 of the Revised Code for a

qualifying felony of the first or second degree that are to be served

consecutively and all of the definite terms of the felonies that are not

qualifying felonies of the first or second degree that are to be served

consecutively, and the maximum term shall be equal to the total

of those terms so added by the court plus fifty per cent of the

longest minimum term or definite term for the most serious

felony being sentenced.

O.R.C. § 2929.144(B)(2) (emphasis supplied). The RTL provides that “there shall be a

presumption that the person shall be released from service of the sentence on the expiration of the

offender’s minimum prison term.” O.R.C. § 2967.271. This presumption can be rebutted—and the

5 E.g., as applicable to the instant case: “For a felony of the second degree… the prison term shall be an indefinite

prison term with a stated minimum term selected by the court of two, three, four, five, six, seven, or eight years.”

O.R.C. § 2929.14

offender can be made to serve his/her sentence up to the maximum term as calculated above—

upon certain determinations made by the department of rehabilitation and correction. Id.

Math-averse jurists will find cold comfort that the RTL sentencing scheme, since first

going into effect in March 2019, has spawned abundant litigation and vastly differing conclusions

on its constitutional validity. See, e.g., State v. Maddox, 2022-Ohio-764, 168 Ohio St. 3d 292, 198

N.E.3d 797 (Supreme Court of Ohio opinion with three dissents as to the ripeness of a

constitutional challenge to RTL); State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536, appeal

allowed, 2022-Ohio-1485, 166 Ohio St. 3d 1496, 186 N.E.3d 830, and aff'd sub nom. In re Cases

Held for State v. Hacker & State, 2023-Ohio-3863, 174 Ohio St. 3d 92, 234 N.E.3d 403, cert.

denied sub nom. Shepard v. Ohio, No. 23-7094, 2024 WL 2805805 (U.S. June 3, 2024) (en banc

appellate panel denying constitutional challenge to RTL, vacating prior holding finding law

unconstitutional; four separate opinions); cf. § 118:4.50. Legal Challenges to Reagan Tokes Act,

Baldwin's Oh. Prac. Crim. L. § 118:4.50 (3d ed.) (cataloging challenges under various theories and

case examples).

Before the Supreme Court of Ohio weighed in, constitutional challenges to the RTL found

disparate reception across Ohio’s twelve appellate districts. See State v. Hearn, 2021-Ohio-594, ¶

29-34 (summarizing then-state of appellate district split on constitutionality of RTL). On July 26,

2023—well after Petitioner commenced the instant habeas action—the Supreme Court of Ohio

settled the split, rejecting the three predominant theories of constitutional challenges by holding:

(1) that RTL does not violate the separation of powers doctrine; (2) that RTL does not violate the

right to a jury trial; and (3) that RTL is not void for vagueness, and does not otherwise violate

procedural due process. State v. Hacker, 2023-Ohio-2535, 173 Ohio St. 3d 219, 229 N.E.3d 38.

Petitioner does not challenge the constitutionality of RTL, but the complexities of the law provide

important background for this case.

Petitioner pleaded guilty to two counts of Felonious Assault under O.R.C. § 2903.11, each

a second-degree felony. Under Ohio law, a term of incarceration is presumptively appropriate for

any second-degree felony, though that presumption can be rebutted. See O.R.C. § 2929.13(D)(1)

(“[F]or a felony of the first or second degree… it is presumed that a prison term is necessary in

order to comply with the purposes and principles of sentencing.”). However, O.R.C. § 2929.13(F)

sets forth the circumstances in which the imposition of a prison term is mandatory, 6 and paragraph

(F)(6) specifically requires a term of imprisonment for “Any offense that is a first or second degree

felony… if the offender was previously convicted of or pleaded guilty to… any first or second

degree felony.” O.R.C. § 2929.13(F)(6); see also State v. Paskins, 2022-Ohio-4024, ¶¶ 100-104

(discussing application of 2929.13(F) in detail).

Under Ohio law, a mandatory sentence such as Petitioner’s is in fact “mandatory” in two

senses: first, it is imposition-mandatory in the sense that the sentencing court has no discretion to

impose a non-prison sanction. See O.R.C. § 2929.13(F)(6). The imposition of the sentence is

mandated.7 But a sentence such as Petitioner’s is also service-mandatory in the sense that it renders

him ineligible for various statutory programs, such as judicial release, which allow a sentence to

be reduced—i.e., the service of the (complete) sentence is mandatory. Id. 8 Ohio law does not

specifically articulate this imposition/service distinction, but it’s useful here: to the extent that

6 While O.R.C. § 2929.13(F)(6) does not specifically describe the prison sanction imposed on Petitioner as

“mandatory,” the Ohio Revised Code elsewhere defines “mandatory prison term” to include those that the court “shall”

impose under (F)(6). O.R.C. § 2929.01.

7 To be clear, a sentence may be imposition-mandatory, but in many cases the court has discretion to choose among

prison terms of different duration as set forth in the applicable statute. See supra n.5.

8 Specifically, O.R.C. § 2929.13(F) commands that “the court shall impose a prison term or terms” and “shall not

reduce the term or terms” pursuant to O.R.C. § 2929.20 (judicial release), 2967.193 (sentence reduction for

participation in certain programs), or 2967.194 (additional sentence reduction provisions). O.R.C. § 2929.13

(emphasis supplied).

Petitioner seeks relief based on his ignorance of the “mandatory nature” of his sentence, he has a

stronger claim as to its service-mandatory nature than its imposition-mandatory nature.

A final note of clarification: an indefinite sentence imposed under RTL refers to a

“minimum term” or “definite term”—i.e., the presumptive sentence to be served absent certain

determinations by the department of rehabilitation and corrections. On first impression, the

descriptors “minimum” and “definite” appear to be synonymous, in some sense, with “mandatory,”

such that one could reason that an offender could serve nothing less than the “minimum” term,

and that its “definite” nature means it cannot be reduced by judicial release or good time credit.

But Ohio law makes clear that the “minimum prison term” imposed under RTL can be reduced by

judicial release or good time credit to the extent the offender is eligible (O.R.C. § 2967.271(A)(1)),

and a sentencing court retains discretion to impose non-prison sanctions for certain RTL offenses,

unless otherwise provided by the revised code (O.R.C. § 2929.13). In sum, a “minimum term” in

the context of RTL does not (necessarily) describe a mandatory sentence.

In the instant case, Petitioner had a prior conviction for felonious assault,9 thus requiring

the trial court to impose a prison sentence (i.e., the sentence was imposition-mandatory) which

was not eligible to be reduced by Petitioner’s program participation or by function of judicial

release (i.e., the sentence was also service-mandatory). O.R.C. § 2929.13(F). Unfortunately,

Petitioner was not advised of the mandatory nature of his sentence, in either sense, and the record

9 Petitioner argues that the State coerced his plea by improperly including Repeat Violent Offender (“RVO”)

specifications as to each felony count of the original indictment, pursuant to O.R.C. § 2941.149. Petitioner contends

that the State, in a pretrial discovery response, purported that “the Defendant has a known criminal history” and listed

three (3) previous Felonious Assaults and one (1) charge of Rape. Petitioner argues that two (2) of the Felonious

Assaults were “completely falsified/fabricated” and that the Rape charge ended in Petitioner’s acquittal, thus making

the RVO specifications inapplicable. Setting aside Petitioner’s arguments regarding coercion and the RVO

specifications, there is no dispute that Petitioner had at least one (1) prior Felonious Assault at the time of his

sentencing in this case.

reveals numerous instances in which Petitioner was given misleading or outright incorrect

information.

B. Issues with Petitioner’s Plea

The written plea agreement, as signed by Petitioner, states “I understand that the

MAXIMUM penalty COULD be: a maximum basic prison term of 20 years of which 0 years are

mandatory, during which I am NOT eligible for judicial release or community control.” ECF No.

5, PAGEID # 68. This is incorrect. In fact, the maximum term for Petitioner’s offenses would be

20 years, of which 16 years would be mandatory—i.e., could not be abridged by judicial release

or Petitioner’s earning of good time credit. See O.R.C. § 2929.144(B)(2). By incorrectly stating

that “0 years” were mandatory, the written plea agreement falsely suggested that Petitioner could

be eligible for community control instead of a prison sentence. Worse, by indicating that Petitioner

would be ineligible for judicial release for “0 years,” the plea agreement gave the stark impression

that the sentence was not service-mandatory, and that Petitioner would be always eligible for

judicial release—even under the “MAXIMUM penalty.” ECF No. 5, PAGEID # 68

The erroneous information recited in the plea agreement was not cured by the plea

colloquy. Indeed, a review of the transcript of the plea and sentencing reveals that Petitioner was

never advised that his sentence was mandatory, and that, if anything, representations at the hearing

only compounded the confusion. For example, during sentencing, the court stated its findings that

“a prison term is consistent with the purposes and principles of sentencing and that the Defendant’s

not amenable to any available community control sanction.” ECF No. 5, PAGEID # 422. Given

that Ohio law mandated the imposition of a prison sentence, such findings were superfluous.

Petitioner cannot argue that this statement contributed to inducing his guilty plea, because the court

had already accepted his plea by that point. However, statements such as this and others cast

considerable doubt on the sentencing court’s own understanding of the applicable law, and, in turn,

undermine any confidence that Petitioner could have had “sufficient awareness of the relevant

circumstances and likely consequences.” Brady, 397 U.S. at 748. Similarly, though the court

reiterated the plea agreement’s language that “most prison inmates are eligible to earn days of

credit,” but that “some inmates… are not eligible,” it failed to inform Petitioner that his plea put

him squarely in the latter category, pursuant to O.R.C. § 2929.13(F). ECF No. 5, PAGEID # 424.

During the plea colloquy, the court and Petitioner’s trial counsel engaged in a lengthy

discussion regarding the (then-new) RTL which hardly clarified Petitioner’s sentencing outlook.

When the court first mentioned RTL and its potential to extend Petitioner’s sentence by three-and-

a-half (3.5) years, Petitioner asked, “Does that even apply to me?” Id. at PAGEID # 412. The

correct answer was, unambiguously, “yes.” But instead, the court responded, “It’s currently being

litigated, as to its Constitutionality.” Id. While it appears that Petitioner was effectively informed

of the gist of what RTL meant for his sentence—that the 14-year minimum prison term could be

extended by 3.5 years “for being bad” (Id. at PAGEID # 413)—it was likely paired with a strong

impression that RTL would be held unconstitutional before it would ever apply to him. Petitioner’s

trial counsel explicitly stated, “I told my client, in my opinion, it will not survive a legal challenge,

but I can’t guarantee that.” Id. Fanning the uncertainty, the court replied, “Right. None of us can

guarantee what’s going to happen with the future of that particular law.” Id. Openly considering

the unconstitutionality of a statute while at once sentencing a defendant upon that same statute

naturally raises concerns of propriety, and, in any event, only risks obfuscating the particularities

of the sentence being imposed. Later, during sentencing, Petitioner’s trial counsel took care to state

his objection to the constitutionality of RTL on the record, but then, puzzlingly, stated, “I’ve

explained to [Petitioner], he does not have to file his own appeal on [RTL], since it’s a

Constitutional issue.” Id. at PAGEID # 420. Again, the court indicated assent. Id.

Near the very end of the hearing, after the court had imposed the sentence and asked

counsel if they had anything further to put on the record, Petitioner asked, “is there any way that I

can get an earlier release, like after ten years?” Id. at PAGEID # 425. As with the application of

RTL to Petitioner’s sentence, the law dictated the unambiguous answer: no. The nature of his

sentence excluded him from the various statutory sentence-reduction provisions available to Ohio

inmates in the ordinary course. See supra, § I.A. The sentencing court directed Petitioner to talk

to his attorney regarding earlier release, but by then the plea had been accepted and the sentence

imposed, despite Petitioner’s question evincing a fundamental misunderstanding of the service-

mandatory nature of his sentence. ECF No. 5, PAGEID # 425-26.

C. State Court Findings

In recommending dismissal of this action, the Magistrate Judge largely followed the

reasoning of the Fourth District Court of Appeals when it dismissed Petitioner’s application to

reopen his appeal. As to the patently incorrect “MAXIMUM penalty” on the face of the plea

agreement, the Fourth District found no issue because the plea agreement also accurately states the

agreed disposition of seven years on each count. ECF No. 5, PAGEID 193-97. Indeed, on page 2

of the plea agreement, the agreed disposition is stated as “Plead to counts 1 and 2, remaining counts

and the specifications will be dismissed. Serve a 7 year prison term on each count consecutively,

up to a maximum possible term of 17 ½ years.” Id. at PAGEID # 69. From this, the Fourth District

concluded that “while one part of the agreement states that zero years of appellant’s penalty are

mandatory, another part of the document correctly sets forth the plea and the correct nature of

the penalty.” Id. at PAGEID # 194 (emphasis supplied). The Fourth District did not explain how

Petitioner was to heed only the correct portions of his plea agreement and disregard the incorrect

portions, thus arriving at a constitutionally appropriate understanding of his sentence.

But even if this Court assumes Petitioner could somehow differentiate between correct and

incorrect portions of the agreement he signed, this line of reasoning would still depend on the plea

agreement actually stating the correct information. Presumably, “the correct nature of the penalty”

would include the mandatory imposition of a prison term which could not be reduced by judicial

release and good time credit; i.e., that his sentence was imposition-mandatory and service-

mandatory. But, despite the Fourth District’s conclusion to the contrary, the plea agreement does

not actually say any of that, anywhere.10 Id. at PAGEID # 68-70. Even so, the Fourth District was

satisfied that “the trial court advised appellant of the mandatory nature of his sentence during the

plea colloquy, at sentencing, and in the sentencing entry.” Id. at PAGEID # 194. But again, the

record reflects no mention of the mandatory nature of Petitioner’s sentence at the plea colloquy.

Consider the following transcript excerpts quoted by the Fourth District to support its finding that

the trial court “spoke to the mandatory nature” of Petitioner’s sentence:

[Court:] You understand that the—while there’s an agreed

disposition of seven years on each of the charges, to run

consecutively with one another, the actual maximum on these

particular counts is eight years.11 But it’s—it’s—the agreement is

only doing seven. You understand that?

...

[Court:] As I indicated, there’s an agreed disposition that upon this

plea, the other counts and the specifications will be dismissed.12

10 In fact, the plea agreement states that “most prison inmates are eligible to earn days of credit against their prison

sentences.” Id. at PAGEID # 69. The plea agreement also mentions the possibility of community control. Id. But it

does not mention that, in each case, Petitioner’s guilty plea would render him categorically ineligible. Id.

11 Here, the court is referring to the longest definite term of incarceration available (pursuant to statute) for the offense

of second-degree felonious assault. See O.R.C. § 2929.14.

12 It’s possible that the dismissal of the specifications compounded Petitioner’s misunderstanding of the mandatory

nature of his sentence. As noted supra, n.9, Petitioner was charged with Repeat Violent Offender (“RVO”)

specifications as to each count in the original indictment. In most circumstances, a RVO specification carries an

imposition-mandatory prison sentence. See O.R.C. § 2929.14(B)(2). In all circumstances, a sentence imposed for a

RVO specification is service-mandatory, i.e., cannot be reduced by judicial release or good time credit. Id. at (B)(2)(d).

But the dismissal of these specifications did not affect the service-mandatory nature of Petitioner’s sentence.

You’re going to get seven years on each of the two counts. It’ll be

consecutive. So it’ll be fourteen years.

Id. at PAGEID # 193. Neither of these statements gave any indication that Petitioner’s sentence

would be mandatory in either sense.13 And regardless of whether the mandatory nature was

mentioned during sentencing (it was not) or in the sentencing entry (it was),14 by that point, the

plea had already been offered and accepted in open court. Notably, the trial court proceeded to

sentence Petitioner immediately after accepting his plea. Id. at PAGEID # 417.

Despite no mention of the mandatory nature of Petitioner’s sentence prior to the acceptance

of his plea, the Fourth District found that the trial court “sufficiently complied” with Criminal Rule

11: “Expressing an understanding of the maximum sentence includes an inherent understanding

that the mandatory nature of the sentence would make him ineligible for community control

sanctions, early release, and earned credit.” Id. at PAGEID # 196. Again, the knowledge attributed

to Petitioner is not supported by the record. Petitioner was advised via the plea agreement that “0

years” were mandatory, an error which was never corrected during the colloquy—thus, to the

extent that Petitioner “express[ed] an understanding of the maximum sentence,” his understanding

was fundamentally incorrect. As this Court sees it, the Fourth District had it backwards:

understanding the service-mandatory nature of the (maximum) sentence—i.e., that Petitioner was

ineligible for community control, early release, and earned credit—is inherent to understanding

the maximum sentence.

13 As noted, Petitioner’s ignorance of the service-mandatory nature of his sentence is more significant than his

ignorance of its imposition-mandatory nature. Though it appears likely that he was ignorant as to both, he cannot

reasonably contend that his ignorance of the imposition-mandatory nature had a prejudicial effect, given that he

entered a plea agreement in which he agreed to be sentenced to prison, and the court made clear its intent to follow

the agreed disposition. In contrast, nothing in the plea agreement or the hearing transcripts indicates that Petitioner

knowingly agreed to a service-mandatory sentence.

14 Briefly—the sentencing entry was amended, via nunc pro tunc, no less than three (3) times. By the third iteration,

the sentencing court had removed the word “mandatory” and replaced it with “definite” in most (but not all) instances

in the entry. ECF No. 5, PAGEID 349-356.

Though AEDPA requires that this Court defer to the factual determinations of the state

courts, the requirement gives way when such factual determinations are not “fairly supported by

the record.” Hart v. Marion Corr. Inst., 927 F.2d 256, 257 (6th Cir. 1991); see also 28 U.S.C. §

2254(d)(2). In Hart, the petitioner was repeatedly advised by the court and his counsel that he

would serve only fifteen years, when in fact he was sentenced (under a prior indefinite sentencing

scheme) to a term of thirty to seventy-five years in prison. Id. at 257. Despite the stark difference

between the on-the-record advice provided to the petitioner and his actual sentence, the state

appellate court determined that the petitioner “was aware of the actual sentencing possibilities.”

Id. at 259. But the Sixth Circuit found no support in the record for this determination, noting that

“nowhere does the record show that [petitioner] was informed before entering his plea of the true

sentence.” Id. at 258. In fact, the record appeared to show that the sentencing judge and the

petitioner’s counsel were both confused, further undermining the state court factual determination

that the petitioner “was aware of the actual sentencing possibilities.” Id. at 258-259 (noting from

the transcript “evidence that the trial judge himself did not understand the consequences of the

plea agreement and, accordingly, did not give [petitioner] correct information on the consequences

of his plea.”). Therefore, finding deference to state court factual determinations to be unwarranted

upon the record before it, the Sixth Circuit determined that the petitioner’s plea was not entered

voluntarily, and thus habeas relief was appropriate. Id. at 259.

In Wells v. Potter, an unpublished opinion, the Sixth Circuit considered a habeas petition

from an Ohio inmate arguing that “the trial court improperly failed to advise him during his guilty

plea colloquy that his sentence included a mandatory term of incarceration, thereby rendering him

ineligible for judicial release.” No. 16-4133, 2018 WL 1614273, at *2 (6th Cir. Jan. 24, 2018). The

petitioner maintained that he would not have pleaded guilty if he knew that he was ineligible for

judicial release. Id. at *3. However, the Sixth Circuit noted that “while the court did not inform

[petitioner] that he would be ineligible for judicial release, Ohio courts are not required to provide

this information as part of the plea colloquy, absent some misstatement elsewhere regarding

that fact.” Id. (citations omitted) (emphasis supplied). No such misstatement appeared in the

record in Wells. In contrast, as discussed above, the written plea in the instant case agreement gave

the clear, erroneous impression that Petitioner’s eligibility for judicial release was not at risk by

providing that, even under the maximal sentence, Petitioner would be ineligible for judicial release

for “0 years.” ECF No. 5, PAGEID # 68. While this may seem like a circuitous way to

communicate Petitioner’s eligibility for judicial release, it’s a much stranger way to communicate

that he is ineligible.

For the reasons above, this Court departs from the determination of the state appellate

court, and instead finds that Petitioner’s plea was not entered with “sufficient awareness of the

relevant circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748, 90

S. Ct. 1463, 1469, 25 L. Ed. 2d 747 (1970). Therefore, the plea was not voluntarily and intelligently

entered. However, in order for Petitioner to overcome the procedural default of this claim, he must

make the additional showing that he was prejudiced by the constitutional error such that it affected

his substantial rights.15

D. Prejudice

To demonstrate prejudice, the Supreme Court has held that “in cases where the burden of

demonstrating prejudice (or materiality) is on the defendant seeking relief,” the defendant must

15 As noted, Petitioner must also show “cause sufficient to excuse the default” in addition to actual prejudice. Maupin

v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). Petitioner’s showing of cause with regard to his claim of trial error depends

on his successful presentation of his claim for ineffective assistance of appellate counsel. See sub. § II. In other words,

Petitioner’s failure to properly present his claim of constitutional trial error on appeal can be excused if Petitioner can

show that his appellate counsel was constitutionally ineffective for doing so.

show “a reasonable probability that, but for [the error claimed], the result of the proceeding would

have been different.” United States v. Dominguez Benitez, 542 U.S. 74, 81–82, 124 S. Ct. 2333,

2339, 159 L. Ed. 2d 157 (2004) (citing United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375,

87 L.Ed.2d 481 (1985)). In the context of alleged errors concerning a court’s acceptance of a guilty

plea, the Supreme Court has that prejudice must be shown by “a reasonable probability that, but

for the error, he would not have entered the plea.” Dominguez Benitez, 542 U.S. at 83. This Court

finds that Petitioner has made the requisite showing to establish that he was prejudiced by the trial

court accepting his plea which he did not enter voluntarily or intelligently.

Petitioner maintains that he had a legitimate argument that he was acting in self-defense,

and to that end he contends that he had arranged for multiple witnesses to appear and testify on his

behalf at a final pretrial hearing scheduled on February 3, 2020. Numerous affidavits in the record

appear to confirm that Petitioner had witnesses ready to testify in his defense. ECF No. 5, PAGEID

# 216-23. The affidavits, appearing to be executed by Petitioner’s sister, brother, sister-in-law, and

the mother of his children, describe arriving at court on for the final pretrial hearing only to learn

that Petitioner’s counsel was ill and thus the hearing would be continued. Id. The very next day,

February 4, Petitioner appeared with counsel to decline an offer of disposition from the State of

Ohio.16 Id. at PAGEID # 403-05 Then, with his trial date set for February 18, Petitioner entered

his guilty plea at a hearing on February 12. The affidavits claim that the witnesses were unaware

of either hearing after February 3 despite Petitioner’s repeated requests to his counsel that they be

brought to court on his behalf.17 Id. The affidavits also describe meeting with Petitioner’s counsel

at his office and allege that he was dismissive of their expected testimony. Id.

16 The February 4 offer was for 8 years on each of the Felonious Assault counts, to be served consecutively, with the

remaining counts dismissed.

17 The transcript of the plea and sentencing hearing lends some support to the affiants’ contention that they were

prevented from appearing and testifying on Petitioner’s behalf. When the court asks counsel for the state if there is a

The merits of Petitioner’s self-defense argument are unclear from the thin factual record.

But while the prejudice inquiry requires a consideration of Petitioner’s chance at acquittal, it does

not “[look] to the probability of conviction for its own sake.” Lee v. United States, 582 U.S. 357,

367, 137 S. Ct. 1958, 1966, 198 L. Ed. 2d 476 (2017). In other words, even without fully

vindicating his affirmative defense at this stage, the sworn statements of multiple people willing

to testify on his behalf can still support Petitioner’s burden by demonstrating his willingness to

take the case to trial.

Petitioner’s obvious misunderstanding of the nature of his sentence also supports his

argument that he would not have accepted the plea deal. When Petitioner asked, “is there any way

that I can get an earlier release, like after 10 years?” he demonstrated a clearly flawed

understanding of the service-mandatory sentence that had just been imposed upon him. ECF No.

5, PAGEID # 425. He then said, “I got three children out there, and I’d just like to get back to

taking care of them.” Id. Prejudice is not established by the featherweight showing of a reason why

Petitioner would prefer less time in prison, but this statement further colors in the impression that

Petitioner subjectively believed himself to be receiving a materially different sentence in exchange

for his plea than what he in fact received. Therefore, this Court finds that Petitioner has shown a

reasonable probability that, but for the errors discussed supra, he would not have entered the plea.

In other words, had Petitioner been properly advised of the mandatory, irreducible nature of the

sentence that would be imposed upon him, his refusal of the offer appears reasonably probable.

victim impact statement, he replies “They were both notified today. Obviously, this was something quickly that was

happening, and they couldn’t make arrangements to be here.” ECF No. 5, PAGEID # 418. Additionally, while the

affiants generally insinuate that it was Petitioner’s counsel who avoided bringing them before the court, the

prosecution may have had its own reasons for avoiding such testimony, given that the mother of Petitioner’s children,

who originally requested (and received) a no-contact order as a term of Petitioner’s bond, (Id. at PAGEID # 399) had

by then reversed course and was seeking to testify in Petitioner’s defense as his trial approached. Id. at PAGEID #

221.

II. Petitioner’s Claim of Ineffective Assistance of Appellate Counsel

(“Appellate Error”)

Petitioner claims that his counsel on direct appeal was ineffective for failing to raise

Petitioner’s claim of trial court error discussed supra, § I—i.e., constitutional error in the court’s

acceptance of Petitioner’s plea. Petitioner’s ineffective assistance claim does not offer independent

grounds for relief; rather, Petitioner must prosecute this claim to establish cause to excuse the

procedural default of his claim of trial error. Stated differently, Petitioner’s failure to raise his trial

error claim on direct appeal would ordinarily be a conclusive mistake, mandating the denial of the

claim; the claim can be saved, however, if Petitioner can show that the failure to raise it on direct

appeal was due to the constitutionally ineffective assistance of his appellate counsel. However,

Petitioner’s claim for ineffective assistance of appellate counsel is also procedurally defaulted,

requiring that Petitioner again make the dual showings of cause and prejudice.

A. Cause

Petitioner first raised his claim of ineffective assistance of appellate counsel in an

application to reopen his appeal under Ohio App.R. 26(B), consistent with state procedural

requirements. ECF No. 5, PAGEID # 170-86; see also Williams v. Bagley, 380 F.3d 932, 971 (6th

Cir. 2004) (“Under Ohio law, claims of ineffective assistance of appellate counsel must be raised

in a motion for reopening before the court of appeals pursuant to Ohio App.R. 26(B).”). The Fourth

District Court of Appeals denied his Rule 26(B) application, and Petitioner’s attempt to appeal the

denial to the Ohio Supreme Court was rejected because the filing was untimely. The timeliness

required by Rule 26(B) has been held to be an “adequate and independent ground on which to find

procedural default.” Hoffner v. Bradshaw, 622 F.3d 487, 505 (6th Cir. 2010). However, because

Petitioner has shown that his failure to comply with the state procedural rule can be causally

attributed to “some objective factor external to the defense” (Murray v. Carrier, 477 U.S. 478, 488

(1986)), the Magistrate Judge determined that Petitioner had established cause as to this

procedurally defaulted claim:

With respect to the appeal of the denial of his Rule 26(B)

application, Petitioner asserts the prison mailroom was responsible

for the untimely filing, because he submitted his appeal paperwork

for delivery to the Ohio Supreme Court on November 4, 2021,

eight days before the November 12, 2021, deadline. (Doc. 8, at

PAGEID # 515, 518-19.) Ohio does not follow the federal “prison

mailbox rule,” which provides that submissions by pro se prisoners

“are considered filed at the moment of delivery to prison officials

for mailing.” Foster v. Warden, Chillicothe Corr. Inst., 575 F.

App’x 650, 653-54 (6th Cir. 2014) (citing Houston v. Lack, 487

U.S. 266, 271-72 (1988)). However, “a state’s ‘strict filing

deadline’ rule, which generally prevents its courts from

entertaining untimely submissions, does not apply to prevent

federal habeas courts ‘from excusing that procedural default

upon a finding of cause and prejudice.’” Kidd v. Warden, No.

1:13cv867, 2015 WL 269431, *7 (S.D. Oh. Jan. 21, 2015)

(Bertelsman, D.J., adopting Report and Recommendation)

(quoting Foster, 575 F. App’x at 654); Henderson v. Palmer, 730

F.3d 554, 560 (6th Cir. 2013); Maples v. Stegall, 340 F.3d 433, 439

(6th Cir. 2003))…

Petitioner has attached a copy of his prison account

statement showing a $2.36 debit from his account for “postage

charges” to the “Ohio Supreme Court” dated November 5, 2021,

seven days before his appeal filing was due on November 12, 2021.

(Doc. 8, at PAGEID # 519.) Petitioner has also attached a

postmarked envelope, addressed to the Ohio Supreme Court,

which was returned to him when that court rejected his appeal

filing. The envelope is clearly marked in large bold letters “Do Not

Delay, Legal Mail, Time Sensitive.” (Id. at PAGEID # 521.)

Although the postmark date is not legible on the copy submitted by

Petitioner, the Court affords Petitioner the benefit of the doubt that

the postmark reads November 9, 2021. Notably, Respondent has

not disputed this date or any of Petitioner’s contentions regarding

the mailing of his appeal. Based on these exhibits, it appears

Petitioner presented his legal mail to prison officials “in sufficient

time for [it] to arrive timely in the normal course of events.”

Maples, 340 F.3d at 439. Under these facts, Petitioner has

demonstrated cause for the late filing of his appeal that may be

able to excuse his procedural default.

ECF No. 10, 15-19 (emphasis supplied). This Court agrees in full with the reasoning and

determination of the Magistrate Judge regarding Petitioner’s demonstration of cause.18

B. Prejudice

In addition to cause, Petitioner must also show “actual prejudice as a result of the alleged

constitutional violation.” Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). The constitutional

violation alleged is that Petitioner was denied effective assistance of appellate counsel. The

Supreme Court has long recognized the right to effective assistance of counsel on a first appeal as

of right. Evitts v. Lucey, 469 U.S. 387, 397, 105 S. Ct. 830, 837, 83 L. Ed. 2d 821 (1985). In accord

with the analysis articulated in Strickland v. Washington, 466 U.S. 668 (1984) as to claims of

ineffective assistance of trial counsel, Petitioner must show that his appellate counsel was

objectively unreasonable, and that such unreasonable performance actually prejudiced Petitioner.

Smith v. Robbins, 528 U.S. 259, 285, 120 S. Ct. 746, 764, 145 L. Ed. 2d 756 (2000). In this context,

18 In the course of reaching this determination, the Magistrate Judge also granted Petitioner’s motion to expand the

record to include the prison account statement and postmarked envelope as evidence of his attempt to timely appeal

the denial of his Rule 26(B) application. R&R, 18.

Petitioner can establish prejudice by demonstrating “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S.

at 694. As for deficient performance, Petitioner must demonstrate that his appellate counsel failed

to raise an issue that was clearly stronger than the issues that counsel did present. Smith v. Robbins,

528 U.S. at 288. As noted elsewhere, Petitioner’s argument is that appellate counsel was deficient

for failing to raise the trial error discussed supra, § I.

1. Issues Raised on Direct Appeal.

The record contains the merit brief submitted by Petitioner’s appellate counsel, which

states three assignments of error on direct appeal:

1. The trial court did not have jurisdiction to resentence defendant-

appellant.

2. The defendant-appellant’s plea was involuntary and must be

vacated.

3. The indefinite sentencing scheme adopted by [RTL] is an

unconstitutional violation of separation of powers, such that

defendant’s sentence must be vacated.

ECF No. 5, PAGEID # 114. The first assignment of error refers to the trial court’s issuance of two

(2) nunc pro tunc entries after Petitioner’s sentencing, purporting to correct errors in the original

sentencing entry. Because the trial court lacked jurisdiction to issue such entries during the

pendency of the appeal, the first assignment of error was in fact sustained, and the case remanded

“for resentencing.” State v. Hearn, 2021-Ohio-594, ¶ 35. The third assignment of error attacks the

constitutionality of the indefinite sentencing scheme under RTL. As noted supra, RTL faced many

constitutional challenges before the Supreme Court of Ohio settled the issue in July 2023. See State

v. Hacker, 2023-Ohio-2535, 173 Ohio St. 3d 219, 229 N.E.3d 38.

On its face, the second assignment of error appears to be that which Petitioner has brought

before this court. However, a review of the appellate brief shows that appellate counsel was

narrowly focused on the additional three-and-one-half years that could be imposed on Petitioner

under RTL. ECF No. 5, PAGEID # 116-18. Essentially, appellate counsel argued that Petitioner’s

plea was involuntary because he was unaware of the potential “additional” term under RTL:

Defendant-appellant believed that he was receiving a sentence of

fourteen years imprisonment. His attorney suggested that he was

receiving a sentence of fourteen years imprisonment, and strongly

suggested that any additional time would be unconstitutional. The

[trial] Court then imposed an additional term of three-and-one-half

years. Based on the above, this [appellate] Court must vacate the

defendant’s guilty plea and sentence as involuntarily made.

Id. The Fourth District court of appeals disagreed, due in no small part to the numerous instances

in the record showing that Petitioner was repeatedly advised as to his indefinite sentence, including

in the written plea agreement, which recites “a maximum possible term of 17 ½ years” as part of

the agreed disposition. See Id. at PAGEID # 69.

Furthermore, Petitioner’s appellate counsel inaccurately framed the alleged error as the

trial court’s failure to “strictly comply with Crim.R.11(C).” Id. at PAGEID # 116. Rule 11 of the

Ohio Rules of Criminal Procedure, like its federal counterpart, sets forth the procedure that a trial

court must follow in accepting a plea of guilt or no contest, and, specifically, what information

must be communicated to a defendant prior to accepting his plea. Ohio Crim. R. 11. The Supreme

Court of Ohio has held that trial courts must “strictly comply” with Rule 11 to the extent that the

rule requires the court to advise a pleading defendant of his or her constitutional rights. State v.

Veney, 2008-Ohio-5200, ¶ 18, 120 Ohio St. 3d 176, 180, 897 N.E.2d 621, 625 (“strict, or literal,

compliance [is] required when constitutional rights are involved.”). The court’s recitation of the

exact text of the rule is not required; rather, “the underlying purpose” of the rule “is to convey to

the defendant certain information so that he can make a voluntary and intelligent decision to plead

guilty.” Id.

The Supreme Court of Ohio has defined the constitutional rights for which strict

compliance is required as those set forth in paragraph (C)(2)(c) of Ohio Crim.R. 11:

[The court shall not accept a guilty plea before]: Informing the

defendant and determining that the defendant understands that by

the plea the defendant is waiving the rights to jury trial, to confront

witnesses against him or her, to have compulsory process for

obtaining witnesses in the defendant's favor, and to require the state

to prove the defendant's guilt beyond a reasonable doubt at a trial at

which the defendant cannot be compelled to testify against himself

or herself.

Ohio Crim.R. 11(C)(2)(c).19 For the “nonconstitutional notifications” required by Rule 11(C)(2)(a)

and 11(C)(2)(b), Ohio law requires only “substantial compliance.” Veney, 2008-Ohio-5200 at ¶

14. Included in 11(C)(2)(a) is the requirement that the defendant “understand[] the charges” and

“the maximum penalty involved.” Ohio Crim.R. 11(C)(2)(a). Therefore, appellate counsel’s

argument—that the trial court did not “strictly comply” with Rule 11 when it failed advise

Petitioner of the maximum penalty involved—misstated the well-settled law of Ohio that does not

require strict compliance with 11(C)(2)(a). Furthermore, the strict compliance standard requires

that a guilty plea must be vacated when a court fails to strictly comply with 11(C)(2)(c). Veney,

2008-Ohio-5200 at ¶¶ 26, 30. But when a court strays from the requirements of 11(C)(2)(a) or (b),

however, the defendant “must show prejudice before a plea will be vacated.” Id. at ¶ 17. In this

context, as above, establishing prejudice requires a showing “that the plea would otherwise not

have been entered.” Id. at ¶ 15. These differing standards were not identified in appellate counsel’s

brief, and, in any event, appellate counsel offered no facts or argument with regard to prejudice.

Finally, and most significantly, Petitioner’s appellate counsel failed to present any

argument regarding the highly misleading written plea agreement. As described above, the written

19 In the instant case, the trial court properly advised Petitioner of these rights, which were also included in the written

plea agreement. See ECF No. 5, PAGEID # 409.

plea agreement erroneously stated that, of the maximum sentence Petitioner faced, “0 years” would

be mandatory, during which Petitioner would “NOT [be] eligible for judicial release or community

control.” ECF No. 5, PAGEID # 68. And as this Court found above, the record sufficiently supports

Petitioner’s required showing of prejudice, i.e., “that the plea would otherwise not have been

entered.” Veney, 2008-Ohio-5200 at ¶ 15; See also United States v. Dominguez Benitez, 542 U.S.

74, 83 (2004) (“[A] defendant who seeks reversal of his conviction after a guilty plea… must show

a reasonable probability that, but for the error, he would not have entered the plea”). This omission

is made more glaring by appellate counsel’s citation to State v. Florence for the proposition that

“a guilty plea in which the defendant was incorrectly informed of [his] eligibility for judicial

release was not entered knowingly or intelligently,” thus warranting reversal. 2004-Ohio-1956, ¶

4 (emphasis supplied); ECF No. 5, PAGEID # 118.

In sum, the appellate brief misstated the applicable law as to Petitioner’s claim of trial error

and thus failed to address his burden of prejudice. Furthermore, the appellate brief failed to raise

Petitioner’s strongest argument—that the written plea agreement erroneously stated that Petitioner

was eligible for judicial release and good time credit—despite citing to authority supporting the

reversal of a conviction based upon that exact argument. Predictably, the Fourth District denied

Petitioner’s second assignment of error. Hearn, 2021-Ohio-594 at ¶ 28. The appellate court also

denied Petitioner’s third assignment of error, which argued that RTL was unconstitutional. Id. at

¶ 34. As noted, however, Petitioner’s first assignment of error was sustained, and the case was

remanded “for resentencing.” Id. at ¶ 35. Following remand, the trial court issued its third nunc

pro tunc entry regarding Petitioner’s judgment and sentence on March 15, 2021. ECF No. 5,

PAGEID # 349.20

20 Petitioner, in his objections, claims that the trial court failed to bring him before the court for a resentencing hearing

and thus failed to follow the instructions of the Fourth District on remand. While the Fourth District did indeed remand

2. State Court Findings – Ineffective Assistance of Appellate Counsel.

Petitioner first raised his claim of ineffective assistance of appellate counsel in his

application to reopen his direct appeal pursuant to Ohio App.R. 26(B). ECF No. 5, PAGEID #

170-86. The Fourth District denied the application upon determining that Petitioner could not

establish that he was prejudiced by the trial error that his appellate counsel failed to raise. However,

the Fourth District’s holding in this regard was based entirely on findings which, as discussed

supra, § I.C, had little or no support in the record. “As we held in [Petitioner’s] direct appeal, the

trial court substantially complied with Crim.R.11. Consequently, appellant has failed to establish

his claim of ineffective assistance of counsel.” ECF No. 5, PAGEID # 197. Because the Fourth

District’s findings as to the trial error “[were] based on an unreasonable determination of the facts

in light of the evidence presented” (28 U.S.C. § 2254(d)(2)), this Court is not bound by such

findings or the holdings that follow therefrom. Hart v. Marion Corr. Inst., 927 F.2d 256, 257 (6th

Cir. 1991). Furthermore, because the Fourth District concluded that there was no trial error, and

thus no claim for appellate counsel to fail to raise, there was no occasion to consider whether such

a claim was “clearly stronger” than the issues raised on appeal. Smith v. Robbins, 528 U.S. 259,

288 (2000).

3. Deficient Performance – Relative Strength of Issues on Appeal

Petitioner has established deficient performance on the part of his appellate counsel

because the trial error raised in the instant habeas petition is clearly stronger than the issues that

“for resentencing,” the scope of its holding on this assignment of error—that the first and second nunc pro tunc

sentencing entries were “legal nullities” because the trial court lacked jurisdiction while the appeal was pending—was

narrow and technical. To address the error identified on appeal, the trial court simply needed to file a nunc pro tunc

after it assumed jurisdiction again on remand, as the Fourth District anticipated in its holding on this error: “We note,

however, that generally nothing precludes a trial court from filing amended entries after a remand.” Hearn, 2021-

Ohio-594 at ¶ 15. The trial court appeared to take this cue and issued the amended entry after remand without holding

a resentencing hearing, though Petitioner believes the court in fact held a hearing without him present, pointing to the

signatures of counsel on the amended entry. See ECF No. 5, PAGEID # 349. Regardless, Petitioner did not raise this

claim as a grounds for relief in the instant habeas action, and the Court offers no opinion on the merits thereof.

his appellate counsel actually raised on direct appeal. The first assignment of error on direct appeal

concerned the two nunc pro tunc entries issued by the trial court while the direct appeal was

pending. ECF No. 5, PAGEID # 114. As noted, Petitioner prevailed on this assignment of error

because the Fourth District held that the trial court lacked jurisdiction to issue such entries. Hearn,

2021-Ohio-594 at ¶ 35. The appellate court remanded the case, the trial court issued a third (and

final) nunc pro tunc entry, and Petitioner experienced no material change whatsoever. Petitioner’s

claim now before the Court, which requires vacation of his guilty plea, and which appellate counsel

failed to raise on direct appeal, is clearly stronger than the attack on the nunc pro tunc entries, from

which Petitioner stood to gain very little.

The second assignment of error claimed that Petitioner’s plea was involuntary because

even though he “believed he was receiving a sentence of fourteen years imprisonment” he was

actually sentenced “to an additional indefinite period of time of three-and-one-half years” due to

RTL. ECF No. 5, PAGEID # 117. The Fourth District, denying this claim on direct appeal, pointed

to various places in the transcript of the plea colloquy where Petitioner was advised of the potential

for additional time (E.g., “[COUNSEL]: They can add three-and-a-half years.” (Id. at PAGEID #

412)). Hearn, 2021-Ohio-594 at ¶ 22. Again, Petitioner’s claim now before the court is clearly

stronger than this claim which appellate counsel failed to support with any evidence in the record.

The third assignment of error raised on direct appeal challenged the constitutionality of

RTL, alleging that the indefinite sentencing scheme violated the separation of powers. ECF No. 5,

PAGEID # 118. The Fourth District engaged in a lengthy discussion of the law and the various

challenges that had been brought against it by that point, noting “at least five [Ohio] appellate

districts have addressed the constitutionality of the [RTL].” State v. Hearn, 2021-Ohio-594, ¶ 29.

Ultimately, the Fourth District concluded that the RTL question was not ripe for review. Id. at ¶

34. Petitioner’s appellate counsel clearly had good reason to raise such a challenge given the

novelty and ambiguity then surrounding the law. But at the same time, the novelty and ambiguity

of RTL’s status meant that a successful challenge to the law was likewise uncertain. In contrast,

the claim Petitioner now brings, and which he argues his appellate counsel should have brought,

was far from novel in Ohio law.

4. Prejudice – Reasonable Probability of Prevailing on Appeal

The crux of Petitioner’s claim is that his plea was involuntary because he subjectively

believed that he would be eligible for judicial release (and other sentence-reduction programs),

when in fact he was categorically ineligible. Under Ohio law, a guilty plea can be found to be

involuntary when a defendant is given erroneous information regarding his or her eligibility for

judicial release. State v. Williams, 2017-Ohio-2650, ¶ 15. In Williams, the defendant asked the

sentencing court if it would consider a motion for judicial release “after seven or eight years.” Id.

at ¶ 20. The judge stated, “you should know it’s typically not my policy to grant a judicial release,”

but that “you can always file a judicial release motion and they are considered.” Id. This was

inaccurate, as the statute provided that the defendant would be ineligible for judicial release until

he had served 12 years. Id. at ¶ 21; O.R.C. § 2929.20. The defendant “seemed quite concerned

about the possibility of obtaining judicial release” to the point of stopping the proceedings to

inquire about it. Williams, 2017-Ohio-2650 at ¶ 21. Similarly, the transcript here shows that

Petitioner was concerned about judicial release when he asked if he could “get an earlier release,

like after ten years,” demonstrating his subjective misunderstanding of his sentence. ECF No. 5,

PAGEID # 425.

Williams is not the only case with salient facts which could have been lifted from the instant

record. In State v. Silvers, “the record establish[ed] that the trial court in the instant case had before

it a copy of [the defendant’s] plea form, which clearly stated that he did not face a mandatory

sentence and that he was eligible for community control ‘upon the granting of judicial release.’”

2009-Ohio-687, ¶ 13, 181 Ohio App. 3d 26, 29, 907 N.E.2d 805, 807 (emphasis supplied). In fact,

the defendant faced a mandatory sentence which rendered him ineligible for both community

control and judicial release. Id. During the plea colloquy, the sentencing court “orally advised [the

defendant] that he was not eligible for community control,” but the court “made no attempt to

amend [the] incorrect and misleading information in the plea form.” Id. at ¶¶ 12-13. In the instant

case, the written plea agreement committed the same error by stating that “0” years of Petitioner’s

sentence were mandatory. ECF No. 5, PAGEID # 68. During Petitioner’s plea colloquy, neither

the court nor his counsel said anything to correct this misinformation, and unlike in Silvers, neither

of them said anything inconsistent with the erroneous information in the plea agreement. Id. at

PAGEID # 407-427.

The Fourth District Court of Appeals, which heard Petitioner’s direct appeal, also has

caselaw which strongly supports Petitioner’s claim. In State v. Johnson, the prosecution promised

that there would be no objection to a motion for judicial release after four (4) years of incarceration.

2009-Ohio-1871, ¶ 13, 182 Ohio App. 3d 628, 632, 914 N.E.2d 429, 431. However, the judicial

release statute provided that the defendant would only be eligible after five (5) years. Id. at n.3.

Finding that “there [was] no question that everyone involved in the case sub judice misunderstood

the law,” the Fourth District vacated the plea agreement. Id. ¶¶ 14; 19. In the instant case, a

significantly larger delta exists between the sentence described in the plea agreement and

Petitioner’s actual sentence: whereas the plea agreement communicated that he would be ineligible

for judicial release and community control for “0” years, Petitioner would in fact never be eligible

for judicial release or community control under his actual sentence.

In sum, this court concludes that Petitioner’s claim in the instant petition, attacking the

misrepresentation of the nature of his sentences, namely, his eligibility for judicial release, is

“clearly stronger” than the issues actually raised by his appellate counsel on direct appeal. The

straightforward body of caselaw supporting this argument demonstrates a "reasonable probability

that his claim[] would have succeeded on appeal." Franklin v. Curtin, No. 14-1467, 2015 WL

13927273, at *3 (6th Cir. Oct. 26, 2015). Thus, Petitioner was prejudiced by his appellate counsel’s

deficient performance in failing to identify and present this claim on appeal.

CONCLUSION

Petitioner has established cause and prejudice sufficient to overcome the procedural default

of his claim of ineffective assistance of appellate counsel. His attempt to present this claim to the

state’s highest court was frustrated by prison mailroom delays beyond his control, thus establishing

cause, a determination by the Magistrate Judge that this Court adopts in full. Additionally, the

claimed constitutional error had a prejudicial effect—i.e., but for appellate counsel’s deficient

performance, a reasonable probability exists that Petitioner’s claim would have succeeded on

appeal. By overcoming the bar of procedural default as to his claim of ineffective assistance of

appellate counsel, Petitioner has in turn established cause to excuse the procedural default of his

underlying claim that his plea was involuntarily entered. And finally, because Petitioner has

demonstrated a reasonable probability that he would not have entered his guilty plea but for his

insufficient awareness “of the relevant circumstances and likely consequences,” he has also

established prejudice as to this claim.

In sum, the Court finds Petitioner’s objections (ECF No. 12) have merit and hereby

SUSTAINS the same to the extent set forth herein. Accordingly, the Court finds the petition for

writ of habeas corpus (ECF No. 1) well-taken and hereby GRANTS the same. Petitioner’s guilty

plea shall be VACATED. The Court ISSUES a writ of habeas corpus and remands to state court

for further proceedings. This judgment shall be held in abeyance until the deadline for Respondent

to file a timely appeal has passed.

Additionally, the Court does not disturb the Magistrate Judge’s grant of Petitioner’s first

motion to expand the record. Petitioner filed a second motion to expand the record along with his

objections to the R&R. ECF No. 13. However, in light of the holding herein, this Court finds

Petitioner’s second motion is moot, and therefore DENIES the same.

IT IS SO ORDERED.

s/ James L. Graham

JAMES L. GRAHAM

United States District Judge

DATE: August 28, 2024