text:
    COMMONWEALTH v. Joshua L. DESMOND.
    17-P-1285
    Appeals Court of Massachusetts.
    Entered: November 28, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Joshua L. Desmond, pleaded guilty in the District Court to one count of assault by means of a dangerous weapon, in violation of G. L. c. 265, § 15B (b ), and one count of assault and battery, in violation of G. L. c. 265, § 13A (a ). The sentencing judge sentenced the defendant to thirty-five days time served while held awaiting trial in the house of correction for the assault by means of a dangerous weapon charge, and one year of administrative probation on the assault and battery charge. The conditions of probation required the defendant to remain drug and alcohol free. Following a probation violation hearing on March 21, 2016, the sentencing judge found that the defendant violated the conditions of his probation, and sentenced him to one year in the house of correction, suspended for one year. On March 1, 2017, the defendant was found in violation of probation by a different judge (hereinafter, judge) and sentenced to serve one year in jail. The defendant filed a motion to revise and revoke his sentence, which the judge denied after hearing. The defendant now appeals the judge's decision to revoke his probation, arguing that the judge deprived him of his due process rights by relying on alleged misconduct not set forth in the written notice of probation violation, and that he was prejudiced by this lack of written notice. We affirm.

Standard of review. The Commonwealth must prove any "violation of probation by a preponderance of the evidence." Commonwealth v. Bukin, 467 Mass. 516, 520 (2014). The determination that a probation violation occurred "lies within the discretion of the hearing judge," who must assess the weight of the evidence against the defendant. Id. at 521. Accordingly, we review an order revoking probation for an abuse of discretion. Id. On review, we determine "whether the record discloses sufficient reliable evidence to warrant the findings by the judge that [the defendant] had violated the specified conditions of his probation." Commonwealth v. Morse, 50 Mass. App. Ct. 582, 594 (2000).

Discussion. Although a probation revocation hearing is not a "new criminal prosecution" because the Commonwealth has already proven guilt beyond a reasonable doubt for the underlying offense, such a hearing still "implicates due process rights because a finding of a probation violation may result in a loss of liberty." Commonwealth v. Pena, 462 Mass. 183, 190 (2012). Due process requires that a defendant receive "written notice" of the probation violation, as well as any evidence supporting that violation. Commonwealth v. Durling, 407 Mass. 108, 112-113 (1990). Moreover, a defendant must have an opportunity to present and cross-examine witnesses, and receive a "written statement" by a "neutral" fact finder regarding the "evidence relied on and reasons for revoking" probation. Id. at 113.

These due process requirements, however, are designed to be flexible, and to help ensure, inter alia, that the judge "accurate[ly]" determines "whether revocation [is] proper" in the defendant's situation. Morse, 50 Mass. App. Ct. at 594. "Flexibility is important both to insure the offender the opportunity inherent in the grant of conditional liberty that probation affords, and to insure the Commonwealth the ability to deal expeditiously with a violation of that opportunity." Commonwealth v. Simon, 57 Mass. App. Ct. 80, 85 (2003). Where a judge finds a violation of a probation condition charged in the written notice to the defendant, "reliable evidence of misconduct not charged as a ground of probation violation, where relevant to the judge's discretionary decision whether to revoke probation or modify conditions, may be considered without offending [due process] principles." Commonwealth v. Herrera, 52 Mass. App. Ct. 294, 295 (2001). Given the adaptable nature of this process, we analyze a judge's decision to revoke probation on a case-by-case basis, and evaluate whether the defendant "received 'fair treatment' " during that process, rather than whether the judge followed a rigid procedure. Morse, supra at 591 n.11, quoting Durling, 407 Mass. at 116.

Here, the defendant had either written or actual notice of the bases for his probation violations. The October 14, 2016, notice of probation violation and hearing specified that the defendant failed (1) "to comply with a drug testing requirement" by missing a drug test on October 6, 2016, (2) "to make a required [fee] payment," (3) to report to the probation office for a visit on September 27, 2016, (4) to provide adequate proof of employment and residency, and (5) to remain drug and alcohol free, citing positive drug and alcohol tests on September 21 and September 28, 2016. The defendant stipulated to the two positive drug and alcohol screens, and his counsel stated her understanding that the judge would find a violation as a result of that stipulation. The judge made a finding, both from the bench at the revocation hearing, and in his written probation violation findings and disposition, that the positive screens were bases for the probation violation.

The defendant contends that the "actual bases" for the judge's probation violation finding were his failure to appear at a previously scheduled October 28, 2016, revocation hearing, and his numerous failures thereafter to report to probation, and argues that he had no written notice that the judge would consider those issues at the violation hearing. When the defendant testified at the hearing, however, he admitted he knew he missed the October 28 revocation hearing date, and said he did not attend because he "had no ride" to the court house and was "on bedrest." The defendant also admitted that he failed to meet with his probation officer in the months following the October 28 hearing. Given that the defendant had the opportunity at the hearing to provide a defense to the missed October 28 revocation hearing and subsequent probation meetings, it was "fair" for the judge, having already found a violation of probation (by virtue of the defendant's admission), to consider those issues at the probation revocation hearing. See Morse, 50 Mass. App. Ct. at 91 n.11.

Moreover, defendants who challenge probation revocation orders on due process grounds must demonstrate that a lack of notice prejudiced them in some way, or "contributed to the adverse outcome[s]" of their cases. Morse, 50 Mass. App. Ct. at 588. See Delisle v. Commonwealth, 416 Mass. 359, 362 (1993) ("petitioner's failure to show any prejudice is fatal to his claim"); Simon, 57 Mass. App. Ct. at 85-86 (no prejudice where counsel was prepared to address issue not included in violation notice); Morse, supra at 586 (claimed lack of time to prepare undermined by failure to request continuance or point to potential evidence disputing violation). See also Commonwealth v. Odoardi, 397 Mass. 28, 32 (1986) (lack of surprise at hearing prevented prejudice to probationer).

Here, the fact that the probation violation notice failed to list the defendant's missed October 28 revocation hearing, as well as his numerous missed probation meetings thereafter, did not prejudice his defense because he stipulated to violations (two positive drug and alcohol screens ) that were listed on the notice. See Morse, 50 Mass. App. Ct. at 588 (prejudice must "contribute[ ] to the adverse outcome" in some way). While it is true that at the hearing the defendant's counsel expressed a degree of uncertainty about the bases for the probation violations, "neither [the defendant] nor his counsel moved for a continuance, much less made an offer of proof or even a statement regarding what they would do or what evidence they would present if they received more time to prepare." Id. at 586. Finally, we note that at the hearing on the defendant's motion to revise and revoke his sentence -- held more than two months after his probation revocation hearing -- the defendant had a further opportunity to explain why he missed his October 28 revocation hearing and numerous probation reporting dates, but neither he nor his counsel provided the judge with any new insight.

Conclusion. For the reasons stated above, we affirm the judge's order revoking the defendant's probation.

So ordered.

Affirmed.

      At the probation revocation hearing, the defendant's counsel specifically stated: "We have been willing to stipulate with regard to the violations for the positive screens that took place ... on September 21 and September 28th." The judge explicitly noted, "Failure to remain drug and alcohol free. There you go, that's all I need. All right. Failed to report.... Failed to comply with testing requirements."

      The judge stated that he would "consider the fact that [the defendant] blew out of probation October 28th and was never back again," and suggested that that conduct was a probation violation. Although the defendant contends that the judge could not consider this misconduct because it was not listed on the probation violation notice, the judge was entitled to consider "reliable evidence of misconduct," such as the probation officer's testimony that the defendant defaulted on a probation hearing on October 28, and failed to attend probation meetings thereafter. See Herrera, 52 Mass. App. Ct. at 295.

      The judge found, from the bench, that he did not credit the defendant's statements regarding his reasons for missing the October 28 court date.

      The defendant suggests that "the continued use of substances by a person suffering from a substance use disorder is not a willful violation of probation." A judge, however, may require a defendant to remain drug-free as a condition of probation if that condition, "tailored to the characteristics of the defendant and the underlying crime," "further[s] the rehabilitative goal of probation by facilitating treatment for the defendant's drug addiction." Commonwealth v. Eldred, 480 Mass. 90, 97 (2018). Here, the defendant contends that he continues to struggle with substance abuse issues. Consequently, a probation condition requiring drug and alcohol screens furthers the goal of "facilitating treatment" for the defendant. Id.

      The defendant's probation revocation hearing occurred on March 1, 2017, while the hearing on his motion to revise and revoke his sentence occurred on May 19, 2017.

      To the extent that we do not address the defendant's other contentions, "they 'have not been overlooked. We find nothing in them that requires discussion.' " Department of Revenue v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Christian CABRERA.
    17-P-1443
    Appeals Court of Massachusetts.
    Entered: November 28, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the District Court, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor (OUI), G. L. c. 90, § 24 (1) (a ) (1). On appeal, the defendant claims that he was prejudiced by the arresting officer's inadmissible opinion testimony that he was "drunk." We affirm.

Background. We summarize the relevant facts as the jury could have found them. On September 2, 2016, at approximately 4:40 A . M ., Massachusetts State Trooper Luke Bonin observed a motor vehicle stopped in the middle of the on-ramp to Route 140 in Lakeville. The vehicle's headlights were on, but the directional signals and hazard lights were not. As he walked closer, Trooper Bonin observed that the gearshift was in drive and the brake lights were on, but the driver, later identified as the defendant, was slumped over the steering wheel. When Trooper Bonin knocked on the window, the defendant awakened, turned toward the trooper, and rolled down the window. The defendant explained that he was sorry, and that he was "really tired and wanted to pull over." The defendant placed the gearshift in reverse and turned off the ignition. Trooper Bonin observed that the defendant's eyes were bloodshot and glassy, and an odor of alcohol emanated from the vehicle.

While the defendant was still seated in his vehicle, Trooper Bonin asked him to recite the alphabet. The defendant stopped at the letter "P." When asked to "count backwards from 63 to 51," the defendant "did not stop at the number 51, [but] continued counting down." Trooper Bonin then asked the defendant to get out of the car so he could administer field sobriety tests. The defendant was unsteady on his feet. He could not satisfactorily complete the "walk and turn" test, or the "one-leg stand" test. Trooper Bonin placed the defendant under arrest and transported him to the State police barracks. An inventory search of the defendant's vehicle revealed an open, half-empty bottle of brandy in the glove box. Ultimately, the defendant agreed to take a breathalyzer test, which showed a blood alcohol content of .07.

Discussion. When asked by the prosecutor if, after observing the defendant perform the roadside sobriety tests, Trooper Bonin had formed an opinion as to the defendant's state of sobriety, he responded, "My opinion was that Mr. Cabrera was drunk." On appeal the defendant claims that this testimony was improper lay opinion on the ultimate issue in the case. Because the defendant objected at trial, we review to determine whether any error was prejudicial. See Commonwealth v. Barbosa, 477 Mass. 658, 673 (2017).

It is well settled that lay opinion testimony whether a person was intoxicated from the consumption of alcohol is admissible at trial. Commonwealth v. Canty, 466 Mass. 535, 540 (2013). See Mass. G. Evid. § 704 (2018) ("An opinion is not objectionable just because it embraces an ultimate issue"). On the other hand, "[n]o witness, including a police witness, may testify as to a defendant's guilt or innocence." Commonwealth v. Hamilton, 459 Mass. 422, 439 (2011). The Supreme Judicial Court has addressed the tension between these evidentiary principles in OUI cases, concluding that "a police officer who observed the defendant may offer an opinion as to the defendant's level of intoxication arising from the consumption of alcohol, but may not offer an opinion as to whether the defendant's intoxication impaired his ability to operate a motor vehicle." Canty, supra at 536.

Here, we agree with the Commonwealth that Trooper Bonin's testimony that the defendant was drunk was a permissible opinion on the defendant's state of sobriety rather than an opinion on the defendant's ability to safely operate his motor vehicle. The prosecutor did not elicit testimony regarding the defendant's ability to operate a motor vehicle, and Trooper Bonin offered no further opinion on that subject. Therefore, the judge did not abuse his discretion in admitting the opinion testimony. See Commonwealth v. Connolly, 91 Mass. App. Ct. 580, 585 (2017) (judge's determination regarding admissibility of lay opinion testimony is reviewed for abuse of discretion). Moreover, the defendant was not prejudiced by the opinion, as the other evidence against the defendant was strong, and the judge properly instructed the jury that they could accept or reject Trooper Bonin's opinion. Accordingly, we discern no abuse of discretion in the admission of Trooper Bonin's testimony, and no prejudice to the defendant.

Judgment affirmed.

      Because we are able to resolve the appeal on the existing record, we decline to remand the case to the trial court for reconstruction of certain portions of the trial transcript that are labeled "indiscernible."


text:
    COMMONWEALTH v. Bernard P. DAVIS.
    18-P-121
    Appeals Court of Massachusetts.
    Entered: November 28, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant was charged by complaint with assault and battery on a child with injury. The defendant's initial attorney withdrew, and a subsequent attorney was appointed. After a hearing and a colloquy, the plea judge allowed the defendant to dismiss his second attorney and to proceed pro se with the second attorney acting as standby counsel. Thereafter, the defendant pleaded guilty to a reduced charge of assault and battery, and the portion of his sentence imposing incarceration was deemed served. As part of the plea, the prosecutor agreed to dismiss two new assault and battery charges prior to the defendant's arraignment on those charges.

About six weeks later, the defendant filed a motion to revise and revoke, which was heard by the plea judge, who treated it as a motion to withdraw, and denied it. The judge found that the Commonwealth had satisfied its burden to establish that the defendant's guilty plea was voluntary and intelligent. The defendant did not appeal the order denying this motion. Instead, more than two years later, the defendant filed a second motion to withdraw his guilty plea, which the plea judge denied without a hearing.

It is from the order denying this second motion to withdraw that the defendant appeals. On appeal, the defendant claims he was not adequately represented, his plea was not voluntary and intelligent, there existed newly discovered evidence that could have been used to impeach the victim's mother, and that a cellular telephone (cell phone) recording was an illegal wiretap. We affirm.

1. Adequacy of the guilty plea and counsel. The defendant claims that prior to or at the time of his guilty plea, he was not adequately represented and that his plea was coerced. We disagree. As an initial matter, the defendant was representing himself at the time of his plea as the plea judge had allowed him to do so after a colloquy. The defendant did have standby counsel, who the defendant acknowledged in his plea colloquy had acted in his "best interests," discussed possible defenses with him, and advised him as to the charges against him and the consequences of his plea. The defendant also swore that he had acted on the basis of no threats or promises, and entered his plea voluntarily. The plea judge was entitled to rely on the assertions the defendant had made in court, under oath, in denying his motion to withdraw his guilty plea. See Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 638-641 (2007).

In any event, the defendant's claim that he received ineffective assistance of standby counsel is of no avail. There is no constitutional right of a defendant to represent himself and have counsel. See McKaskle v. Wiggins, 465 U.S. 168, 183 (1984) ; Commonwealth v. Brown, 378 Mass. 165, 176 (1979). In fact, the Supreme Judicial Court rejected the proposition that there is a constitutional right to a minimum level of assistance from standby counsel. Commonwealth v. Molino, 411 Mass. 149, 152 (1991). As the defendant chose to represent himself, he may not now raise a claim of ineffective assistance of counsel. Commonwealth v. Jackson, 419 Mass. 716, 720 (1995).

2. Wiretap. The defendant also claims he was prevented from pursuing a motion to suppress the evidence of a cell phone video recording taken by the victim's mother in support of the two new charges of assault and battery. We disagree. This claim is waived as it could have been, but was not, raised in the defendant's first motion challenging his guilty plea. See Mass. R. Crim. P. 30 (c) (2), as appearing in 435 Mass. 1501 (2001); Commonwealth v. Deeran, 397 Mass. 136, 142 (1986).

Even if it were not waived, no relief would be available to the defendant because his two new assault and battery charges were dismissed as part of his negotiated plea deal. In any event, any motion to suppress on illegal wiretap grounds would have been denied as there was no State action in the gathering of the evidence. See Commonwealth v. Santoro, 406 Mass. 421, 423-424 (1990) ; Commonwealth v. Barboza, 54 Mass. App. Ct. 99, 103-105 (2002).

3. Newly discovered evidence. Finally, the defendant claims that newly discovered evidence impeaches the victim's mother's account of the defendant's assault and battery on the one year old victim. We disagree for two reasons. First, the evidence is not newly discovered, but rather the statements at issue were made during the investigation that led to the defendant being charged, and were therefore available to him at the time of his plea. Second, even if some of the evidence could not have been known at that prior time, newly discovered evidence that "tends merely to impeach the credibility of a witness will not ordinarily be the basis of a new trial." Commonwealth v. Sullivan, 478 Mass. 369, 383 (2017), quoting Commonwealth v. Lo, 428 Mass. 45, 53 (1998). The existence of some theoretical means of impeaching the victim's mother regarding details of the assault and battery that she witnessed is not a sufficient ground to invalidate a plea that the defendant knowingly and voluntarily entered.

Order denying motion to withdraw guilty plea and for new trial affirmed.


text:
    COMMONWEALTH v. Ryan E. LOGSDON.
    18-P-171
    Appeals Court of Massachusetts.
    Entered: November 28, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In April 2017, a Superior Court jury convicted the defendant of indecent assault and battery on a person fourteen years of age or older. On the defendant's appeal, we affirm.

Background. On the evening of June 19, 2016, a group of teenagers attended a local carnival. The group included the sixteen year old victim, Jane Doe, and a classmate to whom we refer as Karen. Accompanying the teenagers to the carnival were Karen's mother and the defendant (the mother's thirty-seven year old boy friend). Afterwards, the group gathered at Karen's Fall River home. The teenagers sat around a fire pit in the backyard for several hours, "joking, talking," and watching Youtube videos on their cellular telephones (cell phones). The defendant also sat by the fire and consumed several alcoholic beverages over the course of the night.

At one point, Karen wanted to show the group a video on her cell phone, so she stood in front of a swinging bench where Jane was sitting, and everyone huddled around Karen to see the screen. According to Jane's testimony, the defendant, who had been watching the video from behind the swinging bench, reached over the top of the swinging bench and "cupped" her vagina for two or three seconds. Mark, a boy who had been seated next to Jane on the bench, also testified that he saw the defendant "reach over and grab [Jane's] ... vagina." Jane testified that after the defendant assaulted her, he began talking about how she could get the "things [she] wanted in life through ... sexual favors."

According to Jane and Mark, the defendant then returned to the other side of the fire pit and became agitated, allegedly yelling at two of the other teenage boys and attempting to fight them. Meanwhile, Jane sat quietly in shock, and eventually broke down crying. Mark texted Karen (who had since gone into the house) that she should get her mother because the defendant was "out of hand."

Eventually, Karen, Mark, Jane, and the two other boys left the house and went for a walk around the neighborhood. On the walk, Mark told Karen what had happened to Jane, who agreed with his rendition of the incident. Karen called her neighbor, who was slightly older than the group of teenagers, who then called the police to report the assault. The responding police officer conducted interviews and placed the defendant under arrest.

Discussion. The defendant asserts three arguments on appeal, which we address in turn.

1. Prosecutor's closing argument. The defendant asserts that the prosecutor made various improper statements in her closing argument. Because the defendant never objected at trial, we review only for a "substantial risk of a miscarriage of justice." Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).

We disagree that the prosecutor improperly bolstered Jane's credibility, or unfairly attacked the defendant or his counsel. A prosecutor is allowed to marshal the evidence that supports a conviction, and to argue the strength of that evidence. We discern no impropriety in such arguments here, much less a substantial risk of a miscarriage of justice. See id.

We also disagree that it was improper for the prosecutor to mention Jane's youth and the age disparity between her and the defendant. These facts were relevant, e.g., to explain Jane's reaction to the assault. Moreover, we disagree with the defendant that such age references are comparable to those held to constitute an improper play on the jury's sympathies. Compare Commonwealth v. Santiago, 425 Mass. 491, 494 (1997), S.C., 427 Mass. 298 and 428 Mass. 39, cert. denied, 525 U.S. 1003 (1998) (prosecutor improperly appealed to jurors' sympathies by repeating murder victim's age over twelve times and by referring to her pregnancy and upcoming birthday throughout trial).

2. Prior bad acts. The defendant next argues that the judge abused his discretion by allowing testimony about the defendant's alleged "prior bad acts," namely the sexual comments he made to the victim immediately following the assault, and his subsequent aggression towards the teenage boys. The defendant never objected at trial, so we review for a substantial risk of a miscarriage of justice. See Freeman, 352 Mass. at 564.

We find the defendant's arguments unpersuasive. Although evidence of prior or subsequent bad acts is inadmissible as propensity evidence, it is well established that such evidence may be admissible to show " 'motive, opportunity, intent, preparation, plan, knowledge, identity, or pattern of operation,' [ Commonwealth v.] Walker, 460 Mass. [590,] 613 [2011], [so long as the] probative value is [not] outweighed by the risk of unfair prejudice to the defendant." Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). Here, Jane's testimony concerning the defendant's sexual comments plainly was admissible to show the defendant's state of mind at the time of the assault, since the comments were essentially contemporaneous to the assault itself.

We similarly find no error, much less a substantial risk of a miscarriage of justice, in the judge's allowing testimony about the defendant's aggression toward the teenage boys immediately following the incident. "The 'prosecution [is] entitled to present as full a picture as possible of the events surrounding the incident[s]' at issue." Commonwealth v. Holloway, 44 Mass. App. Ct. 469, 476, (1998), quoting Commonwealth v. Sevieri, 21 Mass. App. Ct. 745, 756 (1986). Testimony about the defendant's aggressive behavior corroborated the evidence that he was under the influence of alcohol, and was relevant to show his state of mind that evening. See Crayton, 470 Mass. at 249.

3. Backdoor first complaint testimony. Finally, the defendant argues that the Commonwealth put forth improper "backdoor first complaint testimony," specifically testimony from the police officer, Jane, and Karen regarding the repeating of Jane's allegations to others. We first address whether such an argument was preserved in the trial court. The defendant raised no objection to such testimony at trial. However, citing Commonwealth v. Grady, 474 Mass. 715, 719 (2016), the defendant argues that such arguments nevertheless were preserved by his having raised them in a motion in limine he filed prior to trial. We disagree.

In Grady, the Supreme Judicial Court explained that when a judge rules against a party in a pretrial motion in limine, the party is excused from objecting again at trial. Id. That is not what happened here. Seeking to prevent unnecessary repetition of Jane's allegations, the defendant filed a pretrial motion in limine "to preclude 'piling on' testimony by witnesses." In that motion, he argued, for example, that because it was not clear who the "true [f]irst [c]omplaint witness" was, Jane should not be allowed to testify that she told both Mark and the police officer about the assault. The prosecutor responded by noting that she did not think the problem that concerned the defendant would materialize (especially given that Mark himself was an eyewitness to the assault). The judge concurred with this assessment. He then nominally allowed the defendant's motion "at this time," while noting that "if there's an issue or concern ... [the lawyers should] bring it to [his] attention."

In the case before us, although the motion judge's ruling emits some confusion, it in any event remains clear that the judge did not reject the defendant's arguments that "piling on" evidence be excluded. To the contrary, the motion judge explicitly invited the defendant to re-raise the issue should the problem materialize at trial. This is thus not a case where the defendant's failure to object is excused under Grady. Our review therefore is limited to whether the admitted evidence caused a substantial risk of a miscarriage of justice. See Commonwealth v. McCoy, 456 Mass. 838, 850 (2010) (where defendant did not object to cumulative first complaint testimony, the error did not create a substantial risk of a miscarriage of justice). Moreover, to the extent that the admitted testimony included unnecessary repetition of Jane's allegations, it was primarily the defense counsel who was responsible. The prosecutor was careful to avoid potential first complaint issues, and it was defense counsel who focused on the details of the witnesses' interactions with the police officer (presumably to support his theory that the police investigation was inadequate).

In any event, any unnecessary repetition of Jane's allegations did not create a substantial risk of a miscarriage of justice. Freeman, 352 Mass. at 564. The trial turned on whether the jury believed Jane's and Mark's eyewitness testimony about the incident, and both were subjected to robust cross-examination. We are confident that any stray testimony about how Jane's and Mark's allegations reached the police did not affect the jury's verdict.

Judgment affirmed.

      Prior to appealing, the defendant filed a motion for new trial, which was denied. The defendant did not appeal from the order denying his new trial motion.

      We have used pseudonyms for all minors.

      There was some testimony that the defendant and Karen's mother are now married. Nothing turns on this.

      A different judge presided over the trial. Before the trial began, the trial judge admitted that he was "not quite sure what it was that [the motion judge] was allowing [with the motion in limine] other than a general request ... for the Commonwealth not to put on repetitive ... first complaint witnesses." After the prosecutor assured the trial judge that she did not "have any intention of asking Mark what the complaining witness told him about what happened," the judge proceeded to trial.

      Nor is there any merit to the defendant's claim that reversal is required because the jury heard that the police arrested the defendant after they interviewed Jane (and therefore that they must have found her credible).


text:
    COMMONWEALTH v. Paul MCKENZIE, Third.
    18-P-395
    Appeals Court of Massachusetts.
    Entered: November 28, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1: 28
   Before us are the consolidated appeals from orders denying the defendant's postconviction motions concerning his two convictions, after a bench trial, as a level three armed career criminal under G. L. c. 269, § 10G (c ) (ACC). Because only two of the three predicate offenses upon which those convictions rested were sequential, see Commonwealth v. Resende, 474 Mass. 455 (2016), we agree with the defendant that the findings that the defendant was guilty as a level three armed career criminal and the consolidated sentence based on the three predicate offenses must be vacated and that the case must be remanded for the entry of findings that the defendant is guilty as a level two armed career criminal pursuant to G. L. c. 269, § 10G (b ), and for resentencing.

Background. At the conclusion of the jury trial on the underlying offenses, the judge asked whether the defendant wished to try to the jury the subsequent offense and ACC portions of the indictments charging the defendant with possession of a firearm without a license. Defense counsel responded that it was not necessary to hold the jury because "[i]f there is to be a trial, it will either be a bench trial before yourself or a fact stipulated jury waived bench trial before yourself." The judge then conducted a jury-waiver colloquy with the defendant, and scheduled the jury-waived trial for the following week.

When that date arrived, the clerk called the ACC trial by announcing to the defendant that he was "before the Court as to those indictments on a jury waived trial." Defense counsel then announced that "[w]e are stipulating on the convictions," a statement about which the judge sought clarification by asking whether "the defendant is agreeing with the Commonwealth to the five convictions that [are] listed under the armed criminal -- armed career criminal aggravating factor on the possession for a firearm, not at home, or school, namely Count I and Count II?" Defense counsel said, "Yes." The judge made no further inquiry at this point, did not state that he accepted the stipulation, did not conduct a colloquy to determine whether the defendant was knowingly agreeing to a trial on stipulated facts, and did not state that he was converting the trial to one on stipulated facts. Instead, the judge asked whether the prosecutor was ready to proceed. The prosecutor was, but announced that "for the purposes of judicial economy," the Commonwealth would only "be moving forward on" the first "three predicative [sic ] offenses for the purposes of the armed career criminal statute." On that basis, the jury-waived ACC trial proceeded with the prosecutor eliciting testimony and introducing documentary evidence concerning those three prior convictions only. All the formalities of a bench trial then followed: the witness was sworn, documents were marked first for identification and then subsequently admitted after sufficient foundation was laid, and the judge permitted cross-examination by defense counsel. At the conclusion of his presentation of the evidence, the prosecutor stated, "[T]he Commonwealth rests." The judge then turned to hear from the defense counsel, who rested without presenting any evidence. In short, the ACC trial was conducted as a typical jury-waived trial and carried none of the indicia, or protections, of a trial on stipulated facts.

Discussion. The lack of colloquy in particular appears to us dispositive. "A trial based on stipulated evidence is not 'a trial constitutionally capable of supporting a conviction,' Commonwealth v. Brady, 59 Mass. App. Ct. 784, 788 (2003), unless it appears on the record that there is an inquiry whether the defendant understands the significance of such a trial as opposed to a customary trial, see Commonwealth v. Stevens, 379 Mass. 772, 776 (1980) ; that the defendant is informed of the rights the defendant has surrendered, including the right to confrontation, the right to cross-examine witnesses, and the right to testify, among others; and that the defendant freely, knowingly and voluntarily waives those rights." Commonwealth v. Castillo, 66 Mass. App. Ct. 34, 37 (2006). There is nothing to indicate that the defendant was aware of the significance of proceeding with a trial on stipulated evidence or of any of the constitutional rights he was waiving.

In these circumstances, although defense counsel stated the defendant was stipulating to the five predicate convictions identified in the indictments, we cannot say that the Commonwealth proved all five convictions as a result of a jury-waived trial on stipulated facts. Instead, the Commonwealth proved only three predicate offenses and there is no dispute that those three convictions are not sequential as required by Resende, 474 Mass. at 462-470. The convictions as a level three armed career criminal therefore rest on insufficient evidence.

The defendant further argues that his adult conviction of assault and battery by means of a dangerous weapon does not qualify as a violent crime for purposes of the ACC. This argument is foreclosed by Commonwealth v. Rezendes, 88 Mass. App. Ct. 369, 372 (2015), where we held that "[i]t is undisputed that, if committed by an adult, an assault and battery by means of a dangerous weapon would be punishable by imprisonment for a term exceeding one year and thus would constitute a violent crime under the Massachusetts [Armed Career Criminal Act]."

For these reasons, the findings that the defendant is guilty as a level three armed career criminal pursuant to G. L. c. 269, § 10G (c ), and the consolidated sentence based on the three predicate offenses cannot stand, and the case must be remanded for entry of findings that the defendant is guilty as a level two armed career criminal pursuant to G. L. c. 269, § 10G (b ), and for resentencing.

Conclusion. The orders entered July 14, 2017, and August 22, 2017, denying the motion to dismiss the indictments and the motions for reconsideration and to correct the record are affirmed. The order entered January 12, 2018, denying the motion to vacate the convictions is vacated, and the case is remanded for further proceedings consistent with this memorandum and order.

So ordered.

Affirmed in part; vacated in part and remanded.

      The defendant's motion filed on October 10, 2017, to vacate the ACC convictions was denied on the ground that the issue raised had been waived because it had not been raised in an earlier postconviction motion. Although we agree the issue was waived, the defendant was (and is) entitled to have it considered for purposes of determining whether any error resulted in a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 293-294 (2002) ("A finding of waiver does not end the analysis, however. All claims, waived or not, must be considered. The difference lies in the standard of review that we apply when we consider the merits of an unpreserved claim"). Here, because the three predicate offenses were not sequential, the Commonwealth's proof was insufficient to establish that the defendant was a level three armed career criminal. Insufficiency of the evidence creates a substantial risk of a miscarriage of justice. See Commonwealth v. McGovern, 397 Mass. 863, 867-868 (1986) (conviction based on legally insufficient evidence creates substantial risk of miscarriage of justice).

      The stipulation was not in writing.

      There is no dispute that two of the convictions were sequential.

      For purposes of the statute, "[v]iolent crime" is defined as:
      "any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or possession of a deadly weapon that would be punishable by imprisonment for such term if committed by an adult, that: (i) has as an element the use, attempted use or threatened use of physical force or a deadly weapon against the person of another; (ii) is burglary, extortion, arson or kidnapping; (iii) involves the use of explosives; or (iv) otherwise involves conduct that presents a serious risk of physical injury to another." G. L. c. 140, § 121.


author: HENDRICKSON, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Larry L. CASEY, Defendant-Appellant.
    NO. CA2017-08-013
    Court of Appeals of Ohio, Twelfth District, Clinton County.
    May 29, 2018
    Mike DeWine, Ohio Attorney General, Joel King, Assistant Attorney General, 441 Vine Street, 1600 Carew Tower, Cincinnati, Ohio 45202, for plaintiff-appellee
    Larry L. Casey, # A722225, Chillicothe Correctional Institution, P.O. Box 5500, Chillicothe, Ohio 45601, defendant-appellant, pro se
   HENDRICKSON, J.

{¶ 1} Defendant-appellant, Larry L. Casey, appeals from a decision of the Clinton County Court of Common Pleas denying his petition for postconviction relief without holding a hearing. For the reasons set forth below, we affirm the trial court's decision.

{¶ 2} The underlying facts relevant to appellant's appeal were previously set forth by this court in State v. Casey , 12th Dist. Clinton Nos. CA2016-01-001 and CA2016-06-013, 2017-Ohio-790, 2017 WL 878692 (hereafter, " Casey I ") and are as follows:

On March 25, 2015, the Clinton County Grand Jury returned an indictment charging Casey with failing to notify of his change of address as a Tier III sex offender. Thereafter, on June 22, 2015, the Clinton County Grand Jury returned another indictment charging Casey with five counts of sexual battery, five counts of rape, and one count of unlawful sexual conduct with a minor. With the exception of the one count alleging unlawful sexual conduct with a minor, all of the charges included a sexually violent predator specification. According to the bill of particulars, these charges stemmed from allegations Casey engaged in various sex acts with N.J., both before and after she turned 13 years old.
The matter ultimately proceeded to a four-day jury trial that concluded on January 8, 2016. At trial, N.J., who was then 15 years old, testified to several instances where Casey had sexual intercourse with her both before and after she turned 13. According to N.J.'s testimony, these incidents occurred multiple times between 2009 and 2014 while she was living in both Warren County and Clinton County. Casey denied ever engaging in any sex acts with N.J. Rather, Casey claimed N.J. was lying and that the allegations were all part of a grand conspiracy between N.J. and her father.
After both parties rested, the jury returned a verdict finding Casey guilty of two counts of sexual battery, one count of rape, and for having unlawful sexual conduct with a minor. The jury also found Casey guilty of failing to provide notice of his change of address. After the jury reached its verdict, the trial court held a hearing wherein it classified Casey as a sexually violent predator and sentenced him to serve a mandatory indefinite term of 25 years to life in prison.

Casey I at ¶ 2-4.

{¶ 3} Appellant directly appealed his convictions, arguing his trial counsel provided ineffective assistance by (1) failing to object to hearsay testimony, (2) failing to object to unqualified expert testimony, and (3) eliciting testimony that he was in jail at the time of trial. Casey I at ¶ 10-14. Appellant also argued his conviction should be reversed as a result of trial counsel's cumulative errors. Id. at ¶ 16-17. We found appellant's arguments to be without merit, overruled his assigned errors, and affirmed his convictions. Id. at ¶ 18.

{¶ 4} Subsequent to our decision in Casey I , appellant moved to reopen his appeal pursuant to App.R. 26(B). Appellant argued his appellate counsel was ineffective for either neglecting to raise or failing to adequately explain trial counsel's ineffective representation as it related to trial counsel's failure to (1) object to hearsay statements, (2) object to the admission of evidence, (3) object to Evid.R. 404(B) evidence, (4) adequately prepare for trial, (5) attempt to negotiate a plea deal, (6) research and develop a theory of defense, and (7) object to improper statements by the prosecutor. Appellant also argued appellate counsel's representation was deficient as appellate counsel failed to challenge the sufficiency and weight of the evidence supporting appellant's convictions. Appellant's application to reopen his appeal was denied by this court on August 10, 2017. State v. Casey , 12th Dist. Clinton Nos. CA2016-01-001 and CA2016-06-013 (Aug. 10, 2017) (Entry Denying Application for Reopening). Appellant asked the court to reconsider its denial of his motion and filed a "Motion to Establish Good Cause" to reopen the appeal. His request was denied. State v. Casey , 12th Dist. Clinton Nos. CA2016-01-001 and CA2016-06-013 (Nov. 8, 2017) (Entry Denying Motion to Establish Good Cause).

{¶ 5} While seeking to reopen his appeal, appellant also sought postconviction relief in the trial court. On April 3, 2017, appellant, through counsel, filed a Petition for Postconviction Relief and Request for Hearing. In his petition, appellant argued he was denied his constitutional right to effective representation as his trial counsel (1) had limited communication with him, (2) failed to inform he faced a potential life sentence of incarceration, (3) failed to discuss or explain the sexually violent predator specification (hereafter, "SVP specification"), (4) failed to advise him about whether he should accept a plea offer by the state, (5) elicited the fact that appellant was incarcerated during trial and failed to request a curative jury instruction, (6) applied a flawed trial strategy, and (7) failed to object to or seek to limit or restrict the state's use of Evid.R. 404(B) evidence. Attached to appellant's petition was his own affidavit and the affidavit of an independent defense attorney. The defense attorney attested that he considered himself to be an "ordinary trial counsel," he had read appellant's trial transcripts, and he found "[t]rial counsel's strategy * * * was so outside the realm of legitimate trial strategy [that he] scoffed upon reading it." In his own affidavit, appellant averred, in relevant part, as follows:

5. Prior to trial, trial counsel communicated with me no more than three (3) times for a total of no more than forty-five (45) minutes.
6. Trial counsel did not inform me I was facing a potential penalty of a life term in prison.
7. Trial counsel did not discuss with or explain to me the sexually violent offender specification * * * or its potential consequences.
8. Trial counsel never advised me whether or not I should accept the State of Ohio's offer or if I should present my case to trial.
9. Trial counsel did not inform me I was testifying at trial until approximately five (5) minutes before taking the witness stand.
* * *
12. I did not know of trial counsel's trial strategy nor did I agree with it.

{¶ 6} The state filed a memorandum in opposition to appellant's petition for postconviction relief and moved for summary judgment on the petition pursuant to R.C. 2953.21(E). The state argued that the majority of appellant's claims were bared by the doctrine of res judicata, as they were either raised and addressed on appellant's direct appeal in Casey I or were capable of being raised on direct appeal. As for those claims that were not barred by res judicata, the state argued the record of proceedings contradicted the assertions set forth in appellant's petition and his self-serving affidavit.

{¶ 7} On July 17, 2017, the trial court dismissed appellant's petition for postconviction relief without holding a hearing after determining substantive grounds for relief had not been demonstrated. The trial court concluded that the majority of appellant's claims were barred by res judicata. As for those claims not barred by res judicata, the court found that the record did not support appellant's claims of ineffective assistance of counsel.

{¶ 8} Appellant appealed, pro se, raising three assignments of error.

{¶ 9} Assignment of Error No. 1:

{¶ 10} APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS COMPORTING WITH THE FOURTEENTH AMENDMENT

WHEN THE TRIAL COURT JUDGE ABUSED HIS DISCRETION AND DISMISSED THE PETITION FOR POSTCONVICTION RELIEF.

{¶ 11} In his first assignment of error, appellant argues the trial court erred in dismissing his petition for postconviction relief without holding an evidentiary hearing as his affidavit and the affidavit of the independent defense attorney set forth sufficient operative facts to establish substantive grounds for relief. Specifically, appellant argues the record of proceedings combined with the information set forth in the affidavits demonstrates trial counsel made numerous mistakes leading up to and during trial, failed to sufficiently prepare for trial, and employed a strategy that was "outside the realm of [a] legitimate trial strategy." Appellant contends trial counsel's errors prejudiced his right to a fair trial.

{¶ 12} A postconviction proceeding is not an appeal of a criminal conviction, but rather, is a collateral civil attack on a criminal judgment. State v. Dillingham, 12th Dist. Butler Nos. CA2012-02-037 and CA2012-02-042, 2012-Ohio-5841, 2012 WL 6118334, ¶ 8 ; State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999). Postconviction relief petitions are governed by R.C. 2953.21, which states, in pertinent part, that

[a]ny person who has been convicted of a criminal offense or adjudicated a delinquent child and who claims that there was such a denial or infringement of the person's rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States * * * may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. The petitioner may file a supporting affidavit and other documentary evidence in support of the claim for relief.

R.C. 2953.21(A)(1)(a).

{¶ 13} Initial petitions for postconviction relief under R.C. 2953.21 may be resolved in one of three ways. The trial court may (1) summarily dismiss the petition without holding an evidentiary hearing pursuant to R.C. 2953.21(D), (2) grant summary judgment on the petition to either party who moved for summary judgment pursuant to R.C. 2953.21(E), or (3) hold an evidentiary hearing on the issues raised by the petition pursuant to R.C. 2953.21(F). State v. Statzer , 12th Dist. Butler CA2017-02-022, 2018-Ohio-363, 2018 WL 582348, ¶ 12 ; State v. McKelton , 12th Dist. Butler No. CA2015-02-028, 2015-Ohio-4228, 2015 WL 5934140, ¶ 9.

{¶ 14} "An evidentiary hearing is not automatically guaranteed each time a defendant makes a petition for postconviction relief." State v. Vore, 12th Dist. Warren Nos. CA2012-06-049 and CA2012-10-106, 2013-Ohio-1490, 2013 WL 1558027, ¶ 11. A trial court properly denies a postconviction relief petition without a hearing if the supporting affidavits, the documentary evidence, the files, and the records of the case do not demonstrate that the petitioner set forth sufficient operative facts to establish substantive grounds for relief. State v. Blankenburg, 12th Dist. Butler No. CA2012-04-088, 2012-Ohio-6175, 2012 WL 6738255, ¶ 9. See also R.C. 2953.21(D).

{¶ 15} Furthermore, a petition for postconviction relief may be dismissed without an evidentiary hearing when the claims raised are barred by the doctrine of res judicata. State v. Perry , 10 Ohio St. 2d 175, 180, 226 N.E.2d 104 (1967). "Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial , which resulted in that judgment of conviction, or on an appeal from that judgment." (Emphasis sic.) Id. at paragraph nine of the syllabus. Res judicata bars a petitioner from "re-packaging" evidence or issues that either were or could have been raised in trial or on direct appeal. State v. Rose , 12th Dist. Butler No. CA2012-03-050, 2012-Ohio-5957, 2012 WL 6588742, ¶ 20.

{¶ 16} The presentation of competent, relevant, and material evidence outside the trial record may defeat the application of res judicata. State v. Lawson , 103 Ohio App.3d 307, 315, 659 N.E.2d 362 (12th Dist.1995). Where a petitioner argues ineffective assistance of counsel through a postconviction relief motion, the petitioner can avoid the bar of res judicata by submitting evidence outside the record on appeal that demonstrates that the petitioner could not have raised the claim based on information in the original record. Id. However, " '[e]vidence presented outside the record must meet some threshold standard of cogency.' " Statzer , 2018-Ohio-363 at ¶ 16, quoting Lawson at 315, 659 N.E.2d 362. If it does not meet this threshold, a petitioner could overcome res judicata " 'by simply attaching as exhibits evidence which is only marginally significant and does not advance the petitioner's claim beyond mere hypotheses and a desire for further discovery.' " Lawson at 315, 659 N.E.2d 362, quoting State v. Coleman , 1st Dist. Hamilton No. C-900811, 1993 WL 74756, at *7-8 (Mar. 17, 1993).

{¶ 17} A trial court's decision to summarily deny a postconviction petition without holding an evidentiary hearing is left to the sound discretion of the trial court. McKelton , 2015-Ohio-4228 at ¶ 11. The term "abuse of discretion" connotes more than an error of law or judgment; it implies the court's attitude was unreasonable, arbitrary, or unconscionable. Statzer , 2018-Ohio-363 at ¶ 14.

{¶ 18} Where the basis of a petition for postconviction relief is a claim of ineffective assistance of counsel, the defendant must show that his or her counsel's actions were outside the wide range of professionally competent assistance, and that prejudice resulted by reason of counsel's actions. State v. Martin , 12th Dist. Warren Nos. CA2003-06-065 and CA2003-06-066, 2004-Ohio-702, 2004 WL 293324, ¶ 12, citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show prejudice, a defendant must prove there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Wilson, 12th Dist. Madison No. CA2013-10-034, 2014-Ohio-2342, 2014 WL 2526103, ¶ 17, quoting Strickland at 694, 104 S.Ct. 2052.

Res Judicata: Testimony of Incarceration, Curative Instruction, and 404(B) Evidence

{¶ 19} In the present case, we find no error in the trial court's decision to dismiss appellant's petition for postconviction relief without holding an evidentiary hearing. Many of the claims appellant set forth in his petition for postconviction relief are barred by the doctrine of res judicata, as they were either raised on direct appeal in Casey I , 2017-Ohio-790, or could have been raised on direct appeal. For instance, this court already addressed appellant's complaints that his trial counsel was deficient for eliciting testimony that he was incarcerated during trial and for not seeking a curative instruction for the same. We found these arguments to be without merit. See Casey I at ¶ 13. Appellant is therefore barred by the doctrine of res judicata from raising and litigating these issues in his postconviction proceedings.

{¶ 20} The doctrine of res judicata also bars review of appellant's Evid.R. 404(B) claim. Whether trial counsel was ineffective for not objecting to or seeking to restrict the state's use of evidence that appellant previously sexually assaulted a minor was an issue capable of being raised on direct appeal as resolution of the issue does not require or involve evidence outside of the trial court record. The claim is therefore barred by res judicata. See Perry , 10 Ohio St.2d at 180, 226 N.E.2d 104.

SVP Specification and Life Sentence of Incarceration

{¶ 21} Appellant's argument that he is entitled to postconviction relief due to trial counsel's failure to explain or discuss the SVP specification and counsel's failure to inform appellant that he faced a life term of incarceration if convicted of rape with the specification are without merit. Even accepting as true appellant's contentions that his trial counsel failed to discuss the SVP specification and failed to inform him of the potential penalty he faced if convicted, appellant is unable to demonstrate he was prejudiced by these alleged deficiencies. The record supports the trial court's finding that it advised appellant about the nature and severity of the charges he faced, including the SVP specification, as well as the potential sentences that accompanied the charges. On the eve of trial, the court continued to advise appellant of the penalties he faced if convicted, stating:

THE COURT: [I]f [appellant] is found guilty of some of the charges we are looking at a mandatory life in prison no discretion of the Court, no possibility of parole. So we are taking about essentially if [appellant] is convicted, he would spend the rest of his life in prison.
* * *
Okay, and your understanding [is] that if you are convicted of some of these crimes, uh the Court has no discretion in terms of the sentence; if you are found guilty you will be basically be sent to prison for life without the possibility of being released.
[Appellant]: Yeah.
THE COURT: Are you prepared to go forward with this?
[Appellant]: Yes, Your Honor, I am.

{¶ 22} As appellant was advised of the SVP specification and of the fact that he faced a sentence of life in prison if convicted, he cannot establish the prejudice prong of Strickland . His claims, therefore, fail. See State v. Childs , 12th Dist. Butler No. CA2009-03-076, 2010-Ohio-1814, 2010 WL 1660444, ¶ 49 (noting that the failure to satisfy either the "performance" or "prejudice" prong of Strickland is fatal to an ineffective assistance of counsel claim).

Discussion of Plea Offer

{¶ 23} Appellant's argument that he is entitled to postconviction relief due to trial counsel's failure to advise him on whether or not he should accept a plea offered by the state also fails. Pursuant to the offered plea, if appellant pled guilty to multiple rape charges, the state would have dismissed the remaining charges and recommended an 18-year sentence, rather than the mandatory indefinite sentence of 25 years to life in prison. Appellant rejected the plea offer. In his affidavit in support of his petition for postconviction relief, appellant asserted that "[t]rial counsel never advised me whether or not I should [have] accept[ed] the State of Ohio's offer or if I should [have] present[ed] my case to trial."

{¶ 24} To establish ineffective assistance of counsel occurring during plea negotiations, a defendant who did not accept a plea offer must show not only deficient representation but also that there is a reasonable probability that (1) the defendant would have accepted the plea offer, (2) the offer would not have been withdrawn and would have been accepted by the trial court, and (3) that the conviction or sentence, or both, under the plea would have been more favorable to the defendant. Lafler v. Cooper , 566 U.S. 156, 164, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012).

{¶ 25} The record demonstrates that the state's proposed plea deal was communicated to appellant and appellant spoke with counsel about the plea offer. Appellant rejected the offer, and trial counsel noted on the record, that

[i]n all my discussions with Mr. Casey, I can assure the Court that Mr. Casey does understand the gravity of the situation and he understands what the potential penalties are. His position from the beginning is that he would not plea[d] to something that he did not do. Obviously, his constitutional presumption is that he is innocent. Uh, he is maintaining that, doesn't see the need to plead guilty to anything, any lesser type of charge or anything that is negotiated with lesser time because he doesn't believe that he committed any of these acts. Uh, we have discussed that and for that reason there was no counteroffer.

{¶ 26} The record further demonstrates that the court discussed the plea offer with appellant. After appellant rejected the plea offer, the court asked appellant, "[A]nd there have been no, after discussing with your attorney there is no counter proposals that you instructed him to make in terms of trying to resolve this case?" Appellant responded, "That is correct, Your Honor."

{¶ 27} Although appellant believes trial counsel should have done more when communicating the plea offer to him, appellant cannot establish that he would have accepted the advice offered by counsel or that the trial court would have accepted the plea offer, even if jointly presented by the parties. Appellant, therefore, cannot establish a claim of ineffective assistance of counsel as it relates to the plea offer. See State v. Burton , 8th Dist. Cuyahoga No. 100716, 2014-Ohio-4207, 2014 WL 4748463, ¶ 13 (rejecting a claim of ineffective assistance of counsel for the alleged failure to advise the defendant to accept an offered plea where the record indicated the defendant was "not interested" in accepting a plea bargain).

Preparation for Trial, Limited Communication, and Trial Strategy

{¶ 28} Appellant also contends trial counsel was ineffective for failing to sufficiently prepare for trial, for only meeting with him "three (3) times for a total of no more than forty-five (45) minutes," for not giving him advance notice that he would be called in his own defense at trial, for not discussing the nature of his testimony or the "benefits and detriments" of testifying on one's own behalf, and for applying a "flawed trial strategy." Appellant supported these contention with his own affidavit and the affidavit of an independent defense attorney who reviewed the record of the trial proceedings.

{¶ 29} Where a petitioner attaches affidavits in support of his petition for postconviction relief, the trial court "should give due deference to [the] affidavits sworn to under oath * * * but may, in the sound exercise of discretion, judge their credibility in determining whether to accept the affidavits as true statements of fact."

Calhoun , 86 Ohio St.3d at 284, 714 N.E.2d 905. In determining the credibility, or lack thereof, of affidavits submitted in support of a petition for postconviction relief, a court should consider

(1) whether the judge reviewing the postconviction relief petition also presided at the trial, (2) whether multiple affidavits contain nearly identical language, or otherwise appear to have been drafted by the same person, (3) whether the affidavits contain or rely on hearsay, (4) whether the affiants are relatives of the petitioner, or otherwise interested in the success of the petitioner's efforts, and (5) whether the affidavits contradict evidence proffered by the defense at trial.

Id. at 285, 714 N.E.2d 905. "Depending on the entire record, one or more of these factors or other factors may be sufficient to justify the conclusion that an affidavit asserting information outside the record lacks credibility. Such a decision should be within the discretion of the trial court." Id.

{¶ 30} In the present case, the same judge who presided over the trial also reviewed appellant's petition for postconviction relief. Therefore, though appellant claimed to have only met with his attorney on three occasions in the six months that elapsed between trial counsel being appointed and the case proceeding to trial, the court had knowledge of the multiple pretrial hearings at which appellant appeared with his counsel. The court also had knowledge of efforts counsel had taken to represent his client and to prepare for trial, including opposing the state's motion to consolidate the cases for trial, requesting a bill of particulars, and seeking to have statements the victim made to a children services' agency turned over in discovery. The record, therefore, contradicts appellant's self-serving affidavit and demonstrates trial counsel took substantial steps to investigate the case and prepare for trial. See, e.g., State v. King , 12th Dist. Butler Nos. CA2013-11-199 and CA2014-06-138, 2014-Ohio-5393, 2014 WL 6865735, ¶ 19 (finding a defendant's claim that trial counsel was unprepared for trial was not supported by the record where counsel filed a bill of particulars, demanded discovery, and sought leave to file a motion to suppress).

{¶ 31} The record further contradicts appellant's statement that trial counsel failed to discuss with him whether or not he should take the stand in his own defense. At trial, appellant specifically stated he and trial counsel had discussed this issue. Prior to appellant testifying, the following discussion was held:

[Trial Counsel]: Your Honor, I believe when we return, Mr. Larry Casey himself wants to take the stand and testify on his own behalf.
THE COURT: Okay. Mr. Casey, I don't often do this when a Defendant indicates that he or she would like to testify, but I'm going to at least advise you. You know, you do have a right to remain silent. Anything you say obviously here in court could be used against you, and you are presumed innocent of any wrongdoing, and there is no requirement that you take the stand and testify. If you do take the stand, you must answer questions of the State of Ohio's prosecutor truthfully, do you understand that?
[Appellant]: I do, Your Honor.
THE COURT: Have you gone over this issue as to whether or not you should testify and give up your right to remain silent with you attorney?
[Appellant]: Yes, sir, I have.
THE COURT: And after conferring [with] him, and talking to him, uh, it is your intention to testify in this case?
[Appellant]: That's correct, Your Honor.

(Emphasis added.)

{¶ 32} Given the foregoing, it is clear that appellant did discuss the issue of testifying at trial with his attorney and that he was apprised of the "detriments" of testifying on his own behalf. Trial counsel was not deficient merely because appellant chose to testify on his own behalf. See, e.g., State v. Ryan , 6th Dist. Wood No. WD-05-064, 2006-Ohio-5120, 2006 WL 2790331, ¶ 23-24 (noting that "whether or not a defendant testifies is a purely tactical decision" and that the "ultimate decision of whether a defendant will testify on his own behalf is the defendant's"). See also State v. Bey , 85 Ohio St.3d 487, 499, 709 N.E.2d 484 (1999) (noting that a defendant's right to testify or not testify on his own behalf is a personal right that only the defendant can waive). Appellant's arguments that counsel provided ineffective assistance for not communicating with him or not adequately preparing for trial are, therefore, without merit.

{¶ 33} As for appellant's claim that trial counsel applied a "flawed trial strategy," in his defense of appellant, we note that "[t]he decision regarding which defense to pursue at trial is a matter of trial strategy, and trial strategy decisions are not the basis of a finding of ineffective assistance of counsel." State v. Kinsworthy , 12th Dist. Warren No. CA2013-06-053, 2014-Ohio-1584, 2014 WL 1489250, ¶ 43. Although appellant submitted an affidavit by a defense attorney who stated he found trial counsel's strategy "so outside the realm of legitimate trial strategy [that he] scoffed upon reading it," the defense attorney did not specifically identify any alleged errors or flaws in trial counsel's strategy. Rather than identifying specific instances where trial counsel's arguments or strategies fell below the wide range of professionally competent assistance, the defense attorney used broad, general, and conclusory language in his affidavit to note his disagreement with trial counsel's strategy. The defense attorney's affidavit, therefore, does not provide support for appellant's claim of ineffective assistance of counsel.

{¶ 34} Moreover, as the trial court noted when it rejected appellant's ineffective assistance claim, "[t]he fact that another defense attorney may have employed a different approach does not mean the alternative strategy fell below an objective standard of reasonableness." "[T]here is a strong presumption that counsel has rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." State v. Rowley , 12th Dist., 2017-Ohio-5850, 94 N.E.3d 907, ¶ 62, citing State v. Hendrix , 12th Dist. Butler No. CA2012-05-109, 2012-Ohio-5610, 2012 WL 5995043, ¶ 14. Here, the strategy employed by trial counsel resulted in the jury finding appellant not guilty on two counts of rape and two counts of sexual battery. The fact that trial counsel's defense strategy was unsuccessful as to other counts in the indictment does not mean counsel's representation amounted to ineffective assistance. See State v. Murphy , 12th Dist. Butler No. CA2009-05-128, 2009-Ohio-6745, 2009 WL 4896231, ¶ 43 ("the fact that the trial strategy was ultimately unsuccessful or that there was another possible and better strategy available does not amount to ineffective assistance of counsel").

{¶ 35} Accordingly, for the reasons stated above, we conclude that the trial court did not abuse its discretion in dismissing appellant's petition for postconviction relief without holding an evidentiary hearing. Appellant's petition and the affidavits submitted in support of said petition failed to contain sufficient operative facts to demonstrate a claim of ineffective assistance of counsel. Appellant's first assignment of error is, therefore, overruled.

{¶ 36} Assignment of Error No. 2:

{¶ 37} APPELLANT WAS DENIED HIS FOURTEENTH AMENDMENT CONSTITUTIONAL DUE PROCESS RIGHTS WHEN HIS TRIAL COURT JUDGE DID NOT RECUSE HIMSELF FROM THE POSTCONVICTION PROCEEDINGS AFTER INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS WERE RAISED AGAIN[ST] THE TRIAL ATTORNEY HE HAD RECOMMENDED.

{¶ 38} In his second assignment of error, appellant argues the trial court judge erred by not recusing himself from the postconviction relief proceedings because the judge "recommended to [a]ppellant that he have [trial counsel] assigned to represent him." Appellant contends that the judge was therefore "biased towards any proceedings which attacked the effectiveness" of trial counsel.

{¶ 39} "It is well settled that a judge who presided at trial will not be disqualified from hearing a petition for postconviction relief in the absence of evidence of bias, prejudice, or a disqualifying interest." In re Disqualification of Nastoff , 134 Ohio St.3d 1232, 2012-Ohio-6339, 983 N.E.2d 354, ¶ 9. In the present case, appellant did not seek to have Judge John W. Rudduck disqualified from proceeding over his petition for postconviction relief, as is permitted by R.C. 2701.03. Rather, appellant waited until his motion for postconviction relief was denied to argue-for the first time on appeal-that Judge Rudduck should have recused himself from the case as he was "biased."

{¶ 40} We find no evidence in the record to support appellant's assertion that Judge Rudduck personally "recommended" appellant's trial counsel or that the judge was biased in reviewing and ruling on the petition for postconviction relief. The record reveals that appellant's trial counsel was appointed by a magistrate on June 26, 2015 after appellant indicated he was indigent and unable to obtain his own representation. Therefore, contrary to appellant's assertions, Judge Rudduck did not personally recommend trial counsel and he did not have a disqualifying interest in determining the merits of the petition for postconviction relief. Judge Rudduck was not required to sua sponte recuse himself from proceeding over the petition for postconviction relief.

{¶ 41} Appellant's second assignment of error is, therefore, overruled.

{¶ 42} Assignment of Error No. 3:

{¶ 43} APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL COMPORTING WITH THE SIXTH AND FOURTEENTH AMENDMENT.

{¶ 44} In his third assignment of error, appellant argues he received ineffective assistance by his "appellate counsel," who in addition to representing appellant on his direct appeal in Casey I also filed appellant's petition for postconviction relief. Appellant argues his appellate counsel was ineffective for (1) "failing to better argue that trial counsel was ineffective for failing to competently implement a coherent trial strategy," (2) failing to prepare an adequate strategy, (3) failing to argue that his trial counsel was ineffective for not interviewing witnesses, and (4) failing to raise a Brady claim.

{¶ 45} To the extent that appellant is seeking to challenge the representation he received by his appellate counsel while on direct appeal in Casey I , we find that his arguments are not properly before us. The proper vehicle to raise the issue of ineffective assistance of appellate counsel is through an application to reopen the appeal made pursuant to App.R. 26(B). See State v. Teets , 4th Dist. Pickaway No. 15CA31, 2016-Ohio-7274, 2016 WL 5908999, ¶ 16. Appellant previously sought to reopen his appeal to raise the issue of ineffective assistance of appellate counsel, and this court denied his request. See State v. Casey , 12th Dist. Clinton Nos. CA2016-01-001 and CA2016-06-013 (Aug. 10, 2017) (Entry Denying Application for Reopening) and State v. Casey , 12th Dist. Clinton Nos. CA2016-01-001 and CA2016-06-013 (Nov. 8, 2017) (Entry Denying Motion to Establish Good Cause). Appellant cannot circumvent our denial of his application to reopen his appeal by now raising arguments relating to appellate counsel's alleged deficiencies on direct appeal.

{¶ 46} As for appellant's arguments that his appellate counsel provided ineffective representation as it related to the filing of his petition for postconviction relief, we note that the right to effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution "does not extend to state postconviction relief proceedings." State v. McKelton , 12th Dist., 2016-Ohio-3216, 55 N.E.3d 26, ¶ 31. See also State v. Wesson , 9th Dist. Summit No. 28412, 2018-Ohio-834, 2018 WL 1189383, ¶ 10 ("there is no constitutional right to the effective assistance of post-conviction counsel"); State v. Brown , 7th Dist. Mahoning No. 01 CA 229, 2003-Ohio-3551, 2003 WL 21518723, ¶ 12 (finding the right to effective assistance of counsel "does not extend to civil post-conviction relief proceedings").

{¶ 47} In Coleman v. Thompson , 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), the United States Supreme Court recognized that as "[t]here is no constitutional right to an attorney in state post-conviction proceedings * * * a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings." The Supreme Court later recognized a "narrow exception" to this general rule. In Martinez v. Ryan , 566 U.S. 1, 17, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), the Court held that

[w]here, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.

{¶ 48} To the extent that appellant relies on Martinez to support his claim of ineffective assistance of his postconviction counsel, we note that Martinez "address[es] ineffective assistance in the context of what may constitute cause to excuse a procedural default in a federal habeas case." Wesson , 2018-Ohio-834 at ¶ 10. It does not affect our analysis under Ohio's statutory postconviction procedures. See id. , citing State v. Jackson , 149 Ohio St.3d 55, 2016-Ohio-5488, 73 N.E.3d 414, ¶ 104 (" Martinez is directed toward federal habeas proceedings and is intended to address issues that arise in that context"). See also State v. Waddy , 10th Dist., 2016-Ohio-4911, 68 N.E.3d 381, ¶ 63 (recognizing that the procedural default doctrine discussed in Martinez , "while applicable to federal habeas corpus proceedings, does not apply to state post-conviction relief proceedings"); State v. Boles , 12th Dist. Brown No. CA2016-07-014, 2017-Ohio-786, 2017 WL 878687, ¶ 23-31.

{¶ 49} Accordingly, as the right to effective assistance of counsel does not extend to state postconviction relief proceedings, appellant cannot maintain a claim of constitutionally ineffective assistance by his postconviction counsel. Appellant's arguments are without merit and his third assignment of error is, therefore, overruled.

{¶ 50} Judgment affirmed.

S. POWELL, P.J., and PIPER, J., concur.

      We note that appellant has attached as exhibits to his appellate brief letters and affidavits that were obtained subsequent to the filing of his petition for postconviction relief and the trial court's dismissal of said petition. These letters and affidavits, which seek to further explain and describe trial counsel's alleged deficient representation, do not appear in the trial court record. Pursuant to App.R. 9(A)(1), "[t]he original papers and exhibits thereto filed in the trial court, the transcript of proceedings, if any, including exhibits, and a certified copy of the docket and journal entries prepared by the clerk of the trial court shall constitute the record on appeal in all cases." An appellate court "is confined to the record, and cannot consider evidence offered for the first time on appeal." State v. Garr , 12th Dist. Butler No. CA2009-01-014, 2009-Ohio-6241, 2009 WL 4260345, ¶ 23. Therefore, as the letters and affidavits do not appear in the trial court record, they are not properly before us and will not be considered on appeal.


author: CYNTHIA WESTCOTT RICE, J.

text:
    WILLOUGHBY SUPPLY COMPANY, INC., Plaintiff-Appellant, v. Ryan E. VILLHAUER, et al., Defendant-Appellee.
    NO. 2017-L-110
    Court of Appeals of Ohio, Eleventh District, Lake County.
    Decided May 29, 2018
    Robert B. Weltman and Amanda R. Yurechko, Weltman, Weinberg & Reis Co., L.P.A., 323 West Lakeside Avenue, Suite 200, Cleveland, OH 44113 (For Plaintiff-Appellant).
    James T. Dixon and David Sporar, Brouse McDowell LPA, 600 Superior Avenue, East, Suite 1600, Cleveland, OH 44114 (For Defendant-Appellee).
   CYNTHIA WESTCOTT RICE, J.

{¶ 1} Appellant, Willoughby Supply Company, Inc. ("Willoughby Supply"), appeals the judgment of the Lake County Court of Common Pleas granting the Civ.R. 12(B)(6) motion to dismiss filed by appellee, Ryan E. Villhauer ("Villhauer").

At issue is whether the trial court erred in dismissing appellant's claim on an account against Villhauer. For the reasons that follow, we reverse and remand.

{¶ 2} The statement of facts that follows is derived from the complaint with its attachments filed by Willoughby Supply. On or about August 8, 2014, "the Defendants," meaning Villhauer and his company Superior Structures of Ohio, L.L.C. ("Superior Structures"), "made application for credit with [Willoughby Supply] by executing an Application and Agreement," a copy of which was attached to the complaint.

{¶ 3} On page 2 of the Application and Agreement, Villhauer stated he was the "Owner/President" of Superior Structures. He also provided his personal information, including his date of birth, driver's license number, home address, cell phone number, bank information, and credit accounts with other supply companies. He also stated he was authorized to order and pick up material from Willoughby Supply.

{¶ 4} On page 3 of the Application and Agreement, in the signature section on the line for "firm name," Villhauer wrote "Superior Structures of Ohio." He also signed his name on behalf of Superior Structures as its "Owner/President" and dated it August 8, 2014.

{¶ 5} Directly beneath the section that Villhauer signed on behalf of Superior Structures, Page 3 also contains a section providing for a personal guarantee. This section stated in all capital letters and in a font size larger than other terms on the page:

{¶ 6} * * * THIS APPLICATION WILL NOT BE APPROVED IF PERSONAL GUARANTEE IS NOT SIGNED * * *
{¶ 7} IN CONSIDERATION OF THE EXTENSION OF CREDIT BY [WILLOUGHBY SUPPLY] TO [SUPERIOR STRUCTURES], AND AS A SUBSTANTIAL AND MATERIAL INDUCEMENT TO [WILLOUGHBY SUPPLY] TO GRANT SUCH CREDIT, THE UNDERSIGNED INDIVIDUAL [VILLHAUER] PERSONALLY GUARANTEES THE FULL AND PROMPT PAYMENT OF ALL AMOUNTS PAYABLE TO [WILLOUGHBY SUPPLY] FOR GOODS PURCHASED BY SAID ENTITY. (Emphasis in original.)

{¶ 8} Directly beneath this language, Villhauer hand-wrote his name by printing it on the "name" line and dated the personal guarantee August 8, 2014. However, he left the line for his signature blank.

{¶ 9} The complaint alleged that Willoughby Supply granted credit to Villhauer and Superior Structures, resulting in an unpaid balance due and owing as of July 31, 2016, in the amount of $28,832. A copy of the statement of account, dated August 29, 2016, attached to the complaint, shows that Superior Structures made multiple purchases of materials from Willoughby Supply between July 2015 and July 2016.

{¶ 10} The complaint alleged that Villhauer and Superior Structures failed and refused to pay Willoughby Supply the balance due and owing, which, as of December 21, 2016, including interest, was $30,865.

{¶ 11} On December 29, 2016, Willoughby Supply filed its complaint against Villhauer and Superior Structures. Instead of filing an answer, on April 7, 2017, Villhauer filed a motion to dismiss, arguing that he could not be held liable because he did not sign the personal guarantee. Willoughby Supply filed a brief in opposition. The trial court granted the motion, simply finding that "Villhauer did not sign the Application and Agreement attached to Plaintiff's Complaint."

{¶ 12} Villhauer failed to file an answer on behalf of Superior Structures and, as a result, Willoughby Supply filed a motion for default judgment against Superior Structures. The trial court granted the motion and entered default judgment in favor of Willoughby Supply and against Superior Structures, making the court's order granting Villhauer's motion to dismiss a final appealable order.

{¶ 13} Willoughby Supply appeals the trial court's judgment granting Villhauer's motion to dismiss, asserting the following for its sole assignment of error:

{¶ 14} "The trial court erred by granting defendant-appellee's motion to dismiss where, if the court were to presume the allegations of the complaint as true and make all reasonable inferences in favor of plaintiff-appellant, a cause of action does exist under which defendant-appellee could be found liable on the personal guarantee."

{¶ 15} A motion to dismiss for failure to state a claim upon which relief can be granted is procedural in nature and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Comm'rs. , 65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992). "[W]hen a party files a motion to dismiss for failure to state a claim, all the factual allegations of the complaint must be taken as true and all reasonable inferences must be drawn in favor of the non-moving party." Byrd v. Faber , 57 Ohio St.3d 56, 60, 565 N.E.2d 584 (1991).

{¶ 16} Moreover, " '[m]aterial incorporated in a complaint may be considered part of the complaint for purposes of determining a Civ.R. 12(B)(6) motion to dismiss.' " Adlaka v. Giannini , 7th Dist. Mahoning No. 05 MA 105, 2006-Ohio-4611, 2006 WL 2575053, ¶ 34, quoting State ex rel. Crabtree v. Franklin Cty. Bd. of Health , 77 Ohio St.3d 247, 249, 673 N.E.2d 1281, fn. 1 (1997).

{¶ 17} In order for a court to grant a motion to dismiss for failure to state a claim, it must appear " 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' " O'Brien v. Univ. Community Tenants Union, Inc. , 42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975), quoting Conley v. Gibson , 355 U.S. 41, 45, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). " '[A]s long as there is a set of facts consistent with the plaintiff's complaint, which would allow the plaintiff to recover, the court may not grant a defendant's motion to dismiss.' " Cincinnati v. Beretta U.S.A. Corp. , 95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136, ¶ 5, quoting York v. Ohio State Hwy. Patrol , 60 Ohio St.3d 143, 145, 573 N.E.2d 1063 (1991). " 'A complaint should not be dismissed for failure to state a claim merely because the allegations do not support the legal theory on which the plaintiff relies . Instead, a trial court must examine the complaint to determine if the allegations provide for relief on any possible theory .' " (Emphasis added.) First Merit Corp. v. Convenient Food Mart, Inc. , 11th Dist. Lake No. 2001-L-226, 2003-Ohio-1094, 2003 WL 943879, ¶ 7, quoting Fahnbulleh v. Strahan , 73 Ohio St.3d 666, 667, 653 N.E.2d 1186 (1995).

{¶ 18} Further, under the rules of notice pleading, Civ.R. 8(A) requires only a short and plain statement of the claim that gives the defendant fair notice of the plaintiff's claim and the grounds on which it is based. Patrick v. Wertman , 113 Ohio App.3d 713, 716, 681 N.E.2d 1385 (3d Dist.1996).

{¶ 19} "Because it is so easy for the pleader to satisfy the standard of Civ.R. 8(A), few complaints are subject to dismissal." Leichtman v. WLW Jacor Communications, Inc. , 92 Ohio App.3d 232, 234, 634 N.E.2d 697 (1st Dist.1994). Finally, an appellate court's review of a trial court's ruling on a motion to dismiss is de novo. Byrd, supra .

{¶ 20} Here, the allegations of the complaint provide for relief on at least four possible legal theories.

{¶ 21} I. THE COMPLAINT PROVIDES FOR RELIEF ON A THEORY THAT VILLHAUER IS INDIVIDUALLY LIABLE.

{¶ 22} First, Willoughby Supply alleged that both Villhauer and Superior Structures applied for credit by executing the application; that Willoughby Supply granted credit to both of them, resulting in an unpaid balance; and that they have failed and refused to repay the balance owned. While Villhauer argues his purported signature on the personal guarantee is insufficient to impose liability, the trial court was required to determine if the complaint provided for relief "on any possible theory." Thus, as an alternative to the guarantee theory of liability, the allegations of the complaint provide for relief on a theory of Villhauer's individual liability on the account.

{¶ 23} II. THE COMPLAINT PROVIDES FOR RELIEF ON A THEORY THAT VILLHAUER SIGNED THE GUARANTEE.

{¶ 24} Second, while Villhauer argues he cannot be liable on the guarantee because he did not sign it, it is not quite accurate to say he did not sign the guarantee. In fact, he does not dispute he hand-wrote his printed name and dated the personal guarantee. As a result, this case is very different from a case in which a purported guarantor did not write his name on the guarantee in any way.

{¶ 25} "A contract can only be interpreted if the provisions are ambiguous or uncertain." Career & Technical Assn. v. Auburn Vocational School Dist. Bd. of Edn. , 11th Dist. Lake No. 2013-L-010, 2014-Ohio-1572, 2014 WL 1478838, ¶ 18. "Contract language is ambiguous if it is susceptible to two or more reasonable interpretations." Id. "The determination of whether provisions in a contract are ambiguous is a legal issue that we review de novo." Id. Further, "if the contract language is capable of two reasonable interpretations, there is an issue of fact [for the jury] as to the parties' intent." Id. "When a contract term is ambiguous, the [jury] must examine parol or extrinsic evidence to determine the parties' intent." Id. Villhauer concedes on appeal that a cursive signature is not necessary to effectuate a binding signature.

{¶ 26} Considering Villhauer's "printed signature" on the guarantee in light of the instrument as a whole, the signature is ambiguous as to whether he intended to be bound by the guarantee. In support of a finding that he intended to be bound, Villhauer provided his personal information, bank information, and a list of his credit accounts with other suppliers, apparently with a view to induce Willoughby Supply to provide credit to Superior Structures. In fact, the notice in the guarantee section stated that "the undersigned individual," i.e., Villhauer, "personally guarantees" the payment of all amounts due as a "material inducement" to Willoughby Supply to grant credit to Superior Structures. Further, directly below the additional notice that "THIS APPLICATION WILL NOT BE APPROVED IF PERSONAL GUARANTEE IS NOT SIGNED," Villhauer wrote his name on the space provided for his "name" and dated the guarantee. He could have crossed out the personal guarantee section; left it blank; or sought another supplier, but he chose not to. In light of the uncertainty and ambiguity created by Villhauer's printed signature on the guarantee, Willoughby Supply may present parol evidence of his intent to be bound thereby and potentially prevail on a guarantee theory.

{¶ 27} III. THE COMPLAINT PROVIDES FOR RELIEF ON A RATIFICATION THEORY.

{¶ 28} Third, ratification also provides a possible theory of recovery. In a similar case involving the same creditor , Willoughby Supply Company, Inc. v. Inghram , 11th Dist., 2015-Ohio-952, 30 N.E.3d 230, Inghram, the person against whom Willoughby Supply sought to enforce the guarantee, denied the signature on the personal guarantee was his. However, Willoughby Supply's financial officer testified he contacted Inghram and he orally ratified the guarantee. This court stated that to prove ratification, the proponent must show the principal engaged in conduct, with full knowledge of the facts, which manifested his intent to ratify the unauthorized transaction. Id. at ¶ 13. This court held there was competent, credible evidence that Inghram ratified the guarantee. Id.

{¶ 29} Here, even if Villhauer's signature on the personal guarantee was insufficient, by accepting more than $28,000 worth of supplies on credit during the course of an entire year from Willoughby Supply, knowing it would not have approved the credit application if Villhauer had not signed the guarantee, Willoughby Supply may recover on a ratification theory.

{¶ 30} IV. THE COMPLAINT PROVIDES FOR RELIEF UNDER THE "LEADING OBJECT RULE."

{¶ 31} Fourth, Villhauer argued below that, because he did not sign the personal guarantee, enforcement of the Application and Agreement against him is barred by the statute of frauds. R.C. 1335.05 provides: "No action shall be brought whereby to charge the defendant, upon a special promise, to answer for the debt * * * of another * * * unless the agreement upon which such action is brought * * * is in writing and signed by the party to be charged therewith * * *."

{¶ 32} Here, even if Villhauer did not sign the personal guarantee, the leading object rule is an exception to the statute of frauds. In Inghram, supra , this court stated: "The leading object rule provides that oral contracts by third parties guaranteeing another's debt are not within the Statute of Frauds, if the guarantor's principal purpose is to benefit his or her own business or pecuniary interests." Id. at ¶ 8, citing Wilson Floors Co. v. Sciota Park Ltd. , 54 Ohio St.2d 451, 377 N.E.2d 514, syllabus (1978). "The determination of whether an oral promise to answer for another's debt exists, and is outside the Statute of Frauds, is a question of fact." Id. at ¶ 22.

{¶ 33} In Inghram, supra , this court applied the leading object rule in finding Inghram's oral guarantee was enforceable since he was the president and owner of the debtor-company and he clearly benefited by being able to purchase from Willoughby Supply materials on credit he needed to keep the company operating. Id. at ¶ 23, 31. Each of these circumstances is present here. Thus, the leading object rule provides another possible theory of recovery for Willoughby Supply.

{¶ 34} We accordingly conclude, the trial court erred in dismissing the complaint. Willoughby Supply's sole assignment of error has merit.

{¶ 35} For the reasons stated in the opinion of this court, it is the judgment and order of this court that the judgment of the Lake County Court of Common Pleas is reversed, and this matter is remanded to the trial court for further proceedings consistent with the opinion.

TIMOTHY P. CANNON, J., concurs,

DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.

{¶ 36} I respectfully dissent and would affirm the decision of the trial court.

{¶ 37} While a complaint should not be dismissed "if the allegations provide for relief on any possible theory," no such theory exists to provide Willoughby Supply relief. Fahnbulleh v. Strahan , 73 Ohio St.3d 666, 667, 653 N.E.2d 1186 (1995).

{¶ 38} Willoughby Supply seeks to hold Villhauer personally liable under a guarantee which Villhauer did not sign personally. Villhauer's signature on the guarantee is unambiguously and unequivocally executed in his capacity as the owner/president of "Superior Structures of Ohio."

{¶ 39} Under Ohio law, as well as that of other jurisdictions, such a guarantee is not enforceable as a matter of law: "[i]f the form of the signature shows unambiguously that the signature is made on behalf of the represented person who is identified in the instrument, the representative is not liable on the instrument." R.C. 1303.42(B)(1) ; compare Livonia Bldg. Materials Co. v. Harrison Constr. Co. , 276 Mich.App. 514, 742 N.W.2d 140, 146 (2007) ("where individual responsibility is demanded the nearly universal practice is that the officer signs twice-once as an officer and again as an individual") (citation omitted).

{¶ 40} It is argued that Villhauer could nevertheless be held personally liable under an exception to the statute of frauds, such as the "leading object rule." Wilson Floors Co. v. Sciota Park, Ltd. , 54 Ohio St.2d 451, 377 N.E.2d 514 (1978), syllabus ("[w]hen the leading [object] of the promisor is not to answer for another's debt but to subserve some pecuniary or business purpose of his own involving a benefit to himself, his promise is not within the statute of frauds, although the original debtor may remain liable"). There are problems with this position.

{¶ 41} Willoughby Supply alleged in the Complaint that Villhauer executed the credit application and agreement. This allegation is flatly contradicted by the actual Application and Agreement attached to the Complaint. By attaching the credit Application and Agreement, the sufficiency of Willoughby Supply's Complaint must be considered in light of the fact that Villhauer did not sign the Application in his personal capacity. See Civ.R. 10(C) ("[a] copy of any written instrument attached to a pleading is a part of the pleading for all purposes"); Radtke v. Chester Twp. , 2015-Ohio-4016, 44 N.E.3d 295, ¶ 18 (11th Dist.). Willoughby Supply failed to allege any basis for Villhauer's personal liability other than his execution of the credit Application. As the trial court must accept that the Application was not executed by Villhauer, there is no basis for holding him personally liable. Gross v. Fizet , 7th Dist. Mahoning No. 98-CA-68, 1999 WL 225417, *6 (Mar. 31, 1999) (where the party to be held liable signed the note "only in his representative capacity (i.e. , as president of the corporation)[,] [t]o find that [the party] orally agreed to personally guarantee this note would conflict with the intention of [the party] as clearly expressed in the written agreement").

{¶ 42} Accordingly, I respectfully dissent and would affirm judgment of the lower court.

      The majority, supra at ¶ 29, improperly suggests that Villhauer may have ratified the guarantee "by accepting more than $28,000 worth of supplies on credit during the course of an entire year from Willoughby Supply." Unless we are willing to give Willoughby Supply the benefit of any possible facts, the supplies were sold on credit to Superior Structures of Ohio and not to Villhauer personally. At most, Villhauer's potential liability is that of a guarantor of the debt.