[Cite as State v. Osborn,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 107423 v. :

TREVON A. OSBORN, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: June 13, 2019

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-606185-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Mary M. Frey, Assistant Prosecuting Attorney, for appellee.

Paul A. Mancino, Jr., for appellant.

LARRY A. JONES, SR., J.:

Defendant-appellant Trevon Osborn (“Osborn”) appeals from the

trial court’s June 2018 findings of fact and conclusions of law denying his petition

for postconviction relief without a hearing. For the reasons that follow, we affirm. Procedural History

In May 2016, Osborn was charged in a 12-count indictment. After

pretrial negotiations with the state, in September 2016, Osborn pleaded guilty to the

following amended counts of the indictment: Count 1, aggravated burglary with a

three-year firearm specification; Count 3, aggravated robbery with a three-year

firearm specification; Count 4, grand theft; Count 5, theft/aggravated theft; Counts

6 and 8, kidnapping; Counts 7 and 9, aggravated robbery; Count 11, improperly

handling firearms in a motor vehicle; and Count 12, impersonation of certain

officers. All the counts contained a forfeiture specification for a Ruger 9 mm

firearm. The remaining counts of the indictment were dismissed.

Sentencing occurred in October 2016. The defense and state agreed

that Counts 3 through 6 and Counts 7 and 8 merged; the state elected to proceed on

Counts 3 and 7, aggravated robbery with a three-year firearm specification and

aggravated robbery, respectively. The trial court sentenced Osborn to an aggregate

15-year prison term that included consecutive sentences.

Osborn filed a direct appeal, challenging his plea and sentence. This

court affirmed the conviction and sentence. State v. Osborn, 8th Dist. Cuyahoga

No. 105196,

.

In December 2017, he filed a petition for postconviction relief,

contending that his trial counsel was ineffective for failing to investigate the charges,

which forced him to plea. Osborn also contended that his trial counsel informed

him that he would only receive a nine-year prison sentence. He supported his petition with a police incident report relative to the offenses, an indictment from

another case, and his own affidavit. The court denied the petition, and in June 2018,

issued findings of fact and conclusions of law. This appeal follows, with Osborn

asserting the following two assignments of error:

Defendant was denied due process of law when his post-conviction petition was denied without a hearing.

Defendant was denied due process of law when he was not granted relief on his post-conviction petition.

Law and Analysis

Postconviction Relief

Postconviction relief is governed by R.C. 2953.21, which provides in

relevant part as follows:

(A)(1)(a) Any person who has been convicted of a criminal offense * * * 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.

***

(D) Before granting a hearing on a petition filed under division (A) of this section, the court shall determine whether there are substantive grounds for relief. In making such a determination, the court shall consider, in addition to the petition, the supporting affidavits, and the documentary evidence, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court’s journal entries, the journalized records of the clerk of the court, and the court reporter’s transcript. * * *

*** (F) Unless the petition and the files and records of the case show the petitioner is not entitled to relief, the court shall proceed to a prompt hearing on the issues even if a direct appeal of the case is pending. * * *

The postconviction relief process is a civil collateral attack on a

criminal judgment, in which the petitioner may present constitutional issues to the

court that would otherwise be impossible to review because the evidence supporting

the issues is not contained in the record of the petitioner’s criminal conviction. State

v. Calhoun,

,

(1999); State v. Carter, 10th

Dist. Franklin No. 13AP-4,

, ¶ 15. Postconviction review is not a

constitutional right but, rather, is a narrow remedy that affords a petitioner no rights

beyond those granted by statute.

. A postconviction relief

petition does not provide a petitioner a second opportunity to litigate his or her

conviction. State v. Hessler, 10th Dist. Franklin No. 01AP-1011,

,

¶ 32.

A petitioner is not automatically entitled to an evidentiary hearing on

a petition for postconviction relief, however. State v. Jackson,

,

(1980). Rather, to warrant an evidentiary hearing on a

petition for postconviction relief, a petitioner bears the initial burden of providing

evidence that demonstrates a cognizable claim of constitutional error. R.C.

2953.21(D); Hessler at ¶ 33.

Thus, a trial court has a statutorily imposed duty to ensure a

defendant presents evidence sufficient to warrant a hearing. State v. Cole,

,

(1982). The evidence must show “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.” R.C.

2953.21(A)(1)(a);

. Pursuant to R.C. 2953.21(D), a defendant’s

petition for postconviction relief may be denied by a trial court without holding an

evidentiary hearing where the petition, the supporting affidavits, the documentary

evidence, the files, and the records do not demonstrate that the petitioner set forth

sufficient operative facts to establish substantive grounds for relief.

at paragraph

two of the syllabus.

A trial court’s decision regarding a postconviction petition filed

pursuant to R.C. 2953.21 will be upheld absent an abuse of discretion when the trial

court’s finding is supported by competent and credible evidence. State v. Gandor,

,

,

.

Osborn’s Petition

As mentioned, Osborn contended in his petition that he was denied

the effective assistance of trial counsel because his trial attorney “failed to properly

investigate the case and forced [him] to enter pleas of guilty in this case of which he

was actually innocent.” He submitted the following in support of his petition: (1)

the narrative police incident report; (2) a May 2016 indictment of an individual

named Terrell Osborn, that alleged offenses that occurred on the same date as

appellant’s; and (3) his own affidavit.

The incident report gave the following facts. On the date in question,

a male victim, his girlfriend, and his sister were at their home on W. 71st Street in Cleveland. The male and his girlfriend were in a bedroom, and the sister was in

another bedroom. The male victim told the police that he heard a loud banging on

the front door, followed by a male’s voice screaming, “Cleveland police, open up.”

Two males then kicked in the door and charged in the bedroom where

the male victim and his girlfriend were. The girlfriend ran out of the room, into the

sister’s room. One of the intruders hit the male victim over the head with a gun and

told him to get to the ground. The intruder placed a pillow over the victim’s head

and told him not to move or he would kill him. The victim could hear the intruders

rummaging through his belongings. After he heard the intruders leave the house,

the victim looked out the window and saw one of them flee in a Toyota Corolla.

The female victims told the police that one of the intruders, who was

masked and had a gun, came in the bedroom where they were, threw a blanket over

them, and told them that if they opened their eyes or removed the blanket, he would

shoot them.

The next door neighbor is the one who called the police. According to

him, he was “startled from his sleep [by] loud banging and screaming” coming from

the victims’ house. He looked out his window and saw two males “donkey kicking

the front door” of the victims’ house, and then gain entry. The neighbor also saw a

black Chevy Cruz parked across the street, and then he saw the two intruders going

in and out of the victims’ house with numerous bags, which they put in the Chevy

Cruz. On arrival at the scene, the police saw a black Chevy Cruz in the

middle of the street and saw Osborn running back and forth from the victims’ house

to the car. Osborn got into the passenger seat of the car and the car was driven away.

The police effectuated a stop of the car and ordered the occupants, Osborn and a

female driver, out. When Osborn exited, the police saw a gun “sticking out of his

hooded sweatshirt.” Both Osborn and the driver were arrested.

The female driver told police the Cruz belonged to appellant, but he

asked her to drive it because he did not have a license. Osborn told her that he

needed her to take him to “drop off some dope and get paid.” On the way, they

picked up an unknown male and he and Osborn were talking about something

“going down.” She waited in the car while the males went into the victims’ house.

According to the driver, when the police stopped the Cruz, Osborn told her to “pull

off, pull off, I’m going to go down for this.”

Meanwhile, the police learned that one of the victims’ cell phones had

been stolen from the house. Approximately two hours after the home invasion, the

phone “pinged” to the area of W. 80th and Lorain in Cleveland. The police also

received a call for loud music coming from the area of W. 79th and Lorain, and

responded to the area. They found a vehicle with a man “slumped at the wheel”; the

man was identified as Terrell Osborn, who, according to the incident report, is

appellant’s brother. A gun was found in the center console of the car. Although the

report does not state the make or model of the car, it apparently was not a Toyota Corolla because the report states that an “all channels broadcast” was made for the

Corolla.

In his affidavit, Osborn averred that his retained attorney failed to

properly investigate the case, file any motions on his behalf, and would not show

him any police reports, despite him requesting to see them. According to Osborn,

trial counsel told him that if he entered the plea that the state was offering he would

not receive any more than a nine-year sentence. Osborn averred that the “facts” of

the case were wrong. For example, according to Osborn he was charged with theft

of the Cruz and possessions found in the car, but the Cruz and possessions belonged

to him. Further, he averred that Terrell Osborn is not his brother, and that Terrell

was in an allegedly stolen vehicle.1

Trial Court’s Judgment

As mentioned, the trial court denied Osborn’s petition without a

hearing. In its findings of fact and conclusions of law, the court noted that it engaged

in a full and proper plea colloquy with Osborn, which included advising him of all of

his rights. Osborn indicated that he understood those rights that he was waiving

and that no threats or promises had been made to him to induce his plea. Osborn

further indicated that he was satisfied with his counsel’s representation of him.

The trial court further noted that Osborn was advised at the plea

hearing of the maximum penalty he could receive under the plea, and he indicated

1The indictment against Terrell charged him with one count each of carrying a concealed weapon, improperly handling firearms in a motor vehicle, and having weapons while under disability. that he understood. Moreover, the court informed Osborn that there was no

promise of any particular sentence.

At sentencing, the merger issue was discussed and resolved. Osborn

addressed the court, admitted that he was inside the home when the crimes

occurred, and apologized for his actions.

After review of the “entire record and the exhibits” offered in support

of Osborn’s petition, the trial court found that his affidavit was “not credible.”

Specifically, the court found that,

[t]he affidavit submitted by Defendant-Petitioner does not rebut the presumption that his plea of guilty to each count was made knowingly, intelligently, and voluntarily. Moreover, Defendant-Petitioner’s affidavit from himself in support of his position that his plea was not made knowingly, voluntarily, and intelligently due to the ineffectiveness of his trial counsel is self-serving and contradicted by the record.

Our Review

As mentioned, we will uphold the trial court’s decision absent an

abuse of discretion if the trial court’s finding is supported by competent and credible

evidence. Gandor,

,

,

.

Upon review, we find that the decision was supported by competent and credible

evidence.

The trial court’s determination that Osborn’s affidavit was self-

serving and not credible was not an abuse of discretion. Generally, self-serving

affidavits submitted by a defendant in support of his or her claim for postconviction relief are insufficient to trigger the right to a hearing or to justify granting the

petition under R.C. 2953.21. Calhoun,

,

.

In accessing the credibility of affidavits, the Supreme Court in

Calhoun provided the following relevant factors to be considered:

(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. Moreover, a trial court may find sworn testimony in an affidavit to be contradicted by evidence in the record by the same witness, or to be internally inconsistent, thereby weakening the credibility of that testimony.

, citing State v. Moore,

,

(1st

Dist. 1994).

Here, the trial judge who considered the postconviction petition was

the same judge who presided over the underlying proceedings, including the plea

and sentencing. The only affidavit submitted in support of the petition was that of

Osborn, who obviously was interested in the success of the petition. And the

affidavit contradicted the record, including Osborn’s own admission at sentencing

that he was involved in the crimes, accepted responsibility for his actions, and was

remorseful.

We note that, at sentencing, the trial court recited the facts as

contained in the police incident report. The assistant prosecuting attorney

elaborated on the facts, describing the attack as “planned.” She noted that there was a third individual involved (a juvenile) who was not mentioned in the incident

report, but who provided the state with a proffer of the facts. According to the

juvenile, the intruders, including Osborn, planned the break-in. They drove past the

house twice before going in, believing no one was home. At least one of the intruders

knew the male victim to be a drug dealer and they had hoped to “get an easy score

by hitting a drug dealer’s house.” As of the time of sentencing, the unknown male

intruder had not been apprehended.

On this record, we do not find that the trial court’s determination that

Osborn’s affidavit was self-serving and not credible to be an abuse of discretion.

Finally, we note that in addition to a trial court being permitted to

deny a postconviction petition on the grounds of self-serving and incredible

affidavits, it also may dismiss a petition for postconviction relief without holding an

evidentiary hearing when the claims raised in the petition are barred by the doctrine

of res judicata. State v. Szefcyk,

,

(1996), syllabus.

“Res judicata is applicable in all postconviction relief proceedings.”

. Under

the doctrine of res judicata, a defendant who was represented by counsel is barred

from raising an issue in a petition for postconviction relief if the defendant raised or

could have raised the issue at trial or on direct appeal.

at syllabus; State v.

Reynolds,

,

(1997).

Osborn’s claims were, or could have been, raised on direct appeal.

They, therefore, were barred under the doctrine of res judicata. On this record, we do not find that the trial court abused its discretion

by denying Osborn’s petition without a hearing. The two assignments of error are

overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment

into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

LARRY A. JONES, SR., JUDGE

MARY EILEEN KILBANE, A.J., and RAYMOND C. HEADEN, J., CONCUR