[Cite as State v. Mayes,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Appellate Case No. 26095 Plaintiff-Appellee : : Trial Court Case No. 10-CR-851/1 v. : : DERRICK E. MAYES : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : :

........... OPINION Rendered on the 3rd day of October, 2014. ...........

MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. #0069829, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee

J. ALLEN WILMES, Atty. Reg. #0012093, 7821 North Dixie Drive, Dayton, Ohio 45414 Attorney for Defendant-Appellant

.............

HALL, J.

{¶ 1} Derrick Mayes appeals from the trial court’s denial of his R.C. 2953.21 petition

for post-conviction relief. In his sole assignment of error, he contends the trial court erred in denying the petition.

{¶ 2} The record reflects that Mayes was charged with more than fifty sex offenses

against children, including rape, gross sexual imposition, unlawful sexual conduct with a minor,

disseminating materials harmful to juveniles, and importuning. He ultimately entered a

no-contest plea to some counts in exchange for the dismissal of others. The trial court imposed

concurrent sentences that resulted in an aggregate prison term of ten years to life. Mayes did not

appeal.

{¶ 3} Approximately seven months after sentencing, Mayes filed a petition for

post-conviction relief alleging ineffective assistance of counsel. In support, he claimed he entered

his no-contest plea based on his attorney’s assurance that he would be parole-eligible after ten

years and would be paroled after no more than fourteen years. Accompanying the petition were

his own affidavit and the affidavit from a practicing attorney regarding the projected term that

Mayes may serve. In response to the State’s Motion for Summary Judgment, Mayes filed

affidavits from two additional attorneys. One of the attorneys opined that Mayes will serve a

prison sentence significantly longer than twelve to fourteen years and that it would constitute

ineffective assistance of counsel to tell Mayes he probably would be paroled in twelve to fourteen

years. Another attorney averred that Mayes, who was forty-three years old at the time of his plea,

can expect to serve twenty-five years before being paroled. The third attorney averred that Mayes

is likely to serve at least twenty years before being paroled and that failure to advise him of that

fact would constitute ineffective assistance of counsel. (Doc. #278).

{¶ 4} The trial court held a November 26, 2013 evidentiary hearing on Mayes’ petition.

For purposes of the hearing, the parties agreed that the three attorneys mentioned above would

testify consistent with their affidavits if called as witnesses. The trial court then heard testimony 3

from attorney Richard Skelton (Mayes’ trial counsel) and from Mayes himself. Skelton admitted

telling Mayes that he would be parole-eligible after ten years, which the parties agree was

accurate. As for when Mayes actually would be paroled, Skelton denied telling him that he would

be paroled after fourteen years or even that he likely would be paroled at that time. Although

Skelton could not remember his exact words, he recalled expressing his opinion to Mayes that he

would be “flopped” a couple of times and that he might have “a chance” for parole after fifteen or

sixteen years, depending on his prison record. (Tr. at 16-17). Later in his testimony, Skelton

acknowledged conveying his belief that Mayes’ first “realistic chance” for parole would come in

fifteen or sixteen years. (Id. at 62, 64). For his part, Mayes testified and claimed Skelton told him

he would be paroled in no more than fourteen years. (Id. at 49, 53, 55).

{¶ 5} After hearing the evidence, the trial court found Skelton’s testimony credible and

Mayes’ testimony not credible. It denied the petition, reasoning:

Simply put, and as a matter of fact, Defendant’s Petition and MSJ and the

evidence adduced at the Hearing fail to present credible evidence establishing that

Mr. Skelton ineffectively assisted Defendant thereby resulting in his “no contest”

pleas to the several charges at issue. As a matter of fact, Defendant’s pleas were

conditioned upon his belief that he would be eligible for parole after serving 10

years—and indeed he will be. As a matter of fact, Mr. Skelton gave Defendant no

assurances that he would or was likely to serve no more than 14 years. For that

matter, Mr. Skelton gave Defendant no assurances that his prison term would be

of any particular length except that he would be flopped for parole on at least the

first 2 occasions when Defendant was considered for the same.

The Court finds, as a matter of fact, that Defendant’s affidavit and 4

testimony, in so far as the same conflict with Mr. Skelton’s testimony, are

incredible. And the Court finds that Defendant’s Experts’ opinions regarding Mr.

Skelton’s performance as Defendant’s counsel are of no moment because those

opinions are based in significant part upon accepting as credible Defendant’s

version of the salient facts. In short, the Court finds, as a matter of fact, that at no

time did Mr. Skelton “paint a rosy picture” of Defendant’s chances for parole.

Rather, and through his efforts, Mr. Skelton in fact secured for Defendant a chance

for parole.

Even if Mr. Skelton’s estimate of 14-16 years before Defendant could

expect any chance of parole constituted ineffective assistance of counsel, there is

no showing of prejudice. All of the estimates rise to nothing more than mere

speculation as to how many years Defendant will ultimately serve. There is in fact

a chance that Defendant could be released from prison anytime after serving 10

years.

(Doc. #290 at 8-9).

{¶ 6} On appeal, Mayes recognizes the trial court’s discretion, as trier of fact, to credit

Skelton’s testimony. Even accepting that testimony as true, however, he claims Skelton provided

ineffective assistance by inducing him to plead no contest based on “erroneous” advice that he

would have a realistic chance for parole after fifteen or sixteen years. (Appellant’s brief at 10).

He argues that this faulty, misleading advice constituted ineffective assistance of counsel and

resulted in a defective plea. (Id. at 11). Therefore, he contends the trial court should have granted

him post-conviction relief and allowed him to withdraw his no-contest plea. (Id. at 12).

{¶ 7} We find Mayes’ argument to be without merit. “A defendant who bases a plea 5

decision on parole * * * will often be relying on a factor beyond the prediction of defense

counsel[.]” State v. Xie,

,

(1992). Notably, one

of Mayes’ own experts, attorney Ian Friedman, opined that it would not be unusual for a person

in Mayes’ position to serve at least twenty years before having a realistic chance of release. (Doc.

#278, Friedman affidavit at ¶ 5-6). By comparison, Skelton essentially told Mayes his first

“realistic chance” for parole would come after fifteen or sixteen years and that he would be

“flopped” at least twice. We do not believe these two opinions are so different as to establish that

Skelton’s opinion was demonstrably false or misleading. Attorney David Grant, who opined that

Mayes would serve “a prison sentence significantly greater than twelve to fourteen years” before

being paroled also acknowledged that “it is not possible to predict exactly when a defendant

[will] be released on parole, if ever.” (Doc. #278, Grant affidavit at ¶ 8). Even if Skelton’s

opinion about parole release was more optimistic than the opinion rendered by Friedman or Grant

or the third attorney upon whose affidavits Mayes relied, Skelton’s opinion remained just

that—an opinion that was not demonstrably erroneous or misleading, particularly when compared

to the similar opinion expressed by Friedman.

{¶ 8} Assuming that Skelton’s estimate about parole might turn out in hindsight to be

too optimistic, that fact would not establish deficient representation or justify withdrawing the

plea. We have not discovered definitive Ohio case law on the subject, but effective assistance of

counsel is also a federal constitutional right most specifically defined by federal caselaw.

“Waiving trial entails the inherent risk that the good-faith evaluations of a reasonably competent

attorney will turn out to be mistaken[.]” McMann v. Richardson,

,

,

(1970). “That a * * * plea must be intelligently made is not a requirement 6

that all advice offered by the defendant’s lawyer withstand retrospective examination in a

post-conviction hearing.”

We recognize that “gross misadvice” about parole eligibility may

constitute ineffective assistance and warrant a plea withdrawal. Starcher v. Wingard, 6th Cir. No.

99-3262,

(July 25, 2001). But “an attorney may offer his client a prediction,

based upon his experience or instinct, of the sentence possibilities the accused should weigh in

determining upon a plea.” Wellnitz v. Page,

(10th Cir. 1970); see also Carey v.

Myers, 6th Cir. No. 02-5275,

(July 24, 2003) (concluding that counsel’s

“qualified estimate” about parole did not constitute ineffective assistance where counsel never

guaranteed release by a certain date); Thomas v. Dugger,

(11th Cir. 1988)

(finding no coerced plea where counsel may have told defendant facing a life sentence that

counsel had known inmates sentenced to life to have been released in as little as seven years);

Hooks v. Roberts, D.Kansas No. 09-3090-JWL,

(Nov. 17, 2009) (noting that

case law suggests “a tolerance for miscalculations made by counsel in good faith,” particularly

where a sentencing estimate rather than “material misinformation” is involved). Given these

interpretations, we agree that Mayes has not established that Skelton’s performance fell below an

objective standard of reasonable representation when he assessed the prospects of parole. That

being so, the trial court did not err in finding no ineffective assistance of counsel and no basis for

withdrawing the no-contest plea.

{¶ 9} Mayes’ assignment of error is overruled, and the trial court’s judgment is

affirmed.

............. 7

DONOVAN and WELBAUM, JJ., concur.

Copies mailed to:

Mathias H. Heck Michele D. Phipps J. Allen Wilmes Steven K. Dankof