[Cite as State v. Williams , 2020-Ohio-5398.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, Appellee,

- vs -

LINDSEY M. WILLIAMS, Appellant. :

:

:

:

:

: CASE NO. CA2020-04-026

O P I N I O N

11/23/2020

CRIMINAL APPEAL FROM WARREN CO UNTY COURT OF COMMON PLEAS Case No. 07CR23884

David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice Drive, Lebanon, Ohio 45036, for appellee Thomas G. Eagle, 3400 N. State Route 741, Lebanon, Ohio 45036, for appellant

RINGLAND, J. {¶1} Lindsey Williams appeals the decision of the Warren County Cour t of Common Pleas, which dismissed his petition for postconviction r elief. For the reasons that follow, this court affirms the decision. {¶2} In December 2006, law enforcement responded to a disturbance at Williams'

residence. This led to a four and one-half hour standoff betwe en Williams and policeWarren CA2020-04-026

- 2 - officers, during which Williams fired over 100 rounds towards t he officers. While no officer was struck, multiple police cruisers were damaged by weapons fi re. Williams was then able to steal a police cruiser and drive away from the residence, wh ile armed. He led police on a lengthy chase involving multiple jurisdictions and police dep artments. The chase terminated on Interstate 75. Williams emerged from his vehicle , was shot by police, and

then arrested. {¶3} In 2007, a Warren County grand jury indicted Williams on twelve counts of felonious assault, with a seven-year firearm specification atta ched to each count, one count each of aggravated robbery, inducing panic, improperly discharg ing a firearm, failure to comply with a police officer, with a three-year firearm specifi cation attached to each count, and four counts of misdemeanor aggravated menacing. Williams p led guilty to the counts and specifications in the indictment. The trial court accepted Williams' guilty plea, found him guilty as charged, and sentenced him to a total of 22 years in prison. This court affirmed Williams' sentence on direct appeal. State v. Williams , 12th Dist. Warren No. CA2007-12- 136, 2009-Ohio-435, at ¶ 28. {¶4} Between 2009 and 2013, Williams filed four motions to withdraw his guilty plea. He submitted various arguments in support, including the alleged failure of his trial counsel to obtain video and audio recordings related to the off ense, including 9-1-1 calls.

The trial court denied each motion. This court dismissed or af firmed all appeals of those

decisions. {¶5} In January 2019, Williams petitioned the court for postconvicti on relief pursuant to R.C. 2953.21. The petition alleged that Williams h ad issued pretrial discovery demands to the state, that he was provided with certain respons ive materials, but that he was not provided with certain audio recordings of 9-1-1 calls t hat he placed during the

incident. Williams further stated that before trial, the state offered him a plea agreementWarren CA2020-04-026

- 3 - consisting of an agreed sentence of 14 years in prison. He rej ected that plea offer on the advice of counsel. Subsequently, he pled guilty to all counts and was ordered to serve the 22-year sentence. {¶6} Williams alleged that in 2016, he issued a public records reque st to the police agencies involved in the incident for recordings. He then rece ived 10 audio discs that had not been provided to him or mentioned by the state in earlier p roceedings. Williams alleged that these recordings were "material" and would have resulted i n his defense counsel advising him to accept the state's plea deal. Williams alleged that the state's failure to disclose these records violated his due process rights. {¶7} Williams attached the affidavit of his trial counsel, William F owler. In the affidavit, Fowler averred that he had not reviewed any of the n ewly obtained recordings and other materials, and that if he had, he would have "strongly ad vised" Williams to take the state's plea offer. Williams also attached his own affidavit a nd later filed a supplemental affidavit. In those affidavits, Williams averred that, had he been aware of all the state's evidence against him, he would have accepted the state's plea o ffer. Wilson also submitted all of the newly discovered materials. {¶8} In its decision denying Williams' petition, the court first add ressed Williams' supporting affidavits. With respect to the Fowler affidavit, t he court found that certain averments by Fowler constituted his legal conclusions, and fact s that were contradicted by other evidence, or facts that were contradicted by the law of t he case. With respect to Williams' two affidavits, the court found that Williams' averme nt that he would have accepted the plea deal if he knew of the newly discovered evidence was " entirely speculative." The court also found that certain averments by Williams contained f acts contradicted by other evidence, or facts contradicted by the law of the case. {¶9} Ultimately, the court determined that Williams' petition and su pportingWarren CA2020-04-026

- 4 - evidence did not establish substantive grounds for relief. The court found that the recordings and other materials that Williams had obtained was n ot exculpatory and was not mitigating. 1 The court found that it was equally likely that if the senten cing court had been aware of the additional evidence, then Williams' sentence would have been longer, not shorter. Williams appeals, raising one assignment of error con taining three issues for

review. {¶10} Assignment of Error No. 1: {¶11} THE TRIAL COURT ERRED IN DISMISSING APPELLANT'S PETITION FOR

POSTCONVICTION RELIEF AND WITHOUT CONDUCTING AN EVIDENTIARY

HEARING. {¶12} This court reviews a decision denying a motion for postconvicti on relief under

the abuse of discretion standard. State v. McKelton , 12th Dist. Butler No. CA2015-10-183, 2016-Ohio-3216, ¶ 5. An "abuse of discretion" implies that the court's decision was unreasonable, arbitrary, or unconscionable. Id

. Issue No. 1: Affidavits {¶13} Williams argues that the court erred in rejecting certain averm ents in the supporting affidavits without sufficiently explaining its ratio nale. He contends that the alleged lack of detail in the court's decision fails to permit meaningful appellate review.

Williams cites State v. Calhoun , 86 Ohio St.3d 279, 285 (1999), where the court held that a trial court that discounts the credibility of an affidavit file d in conjunction with a petition for postconviction relief should "include an explanation of its bas is for doing so in its findings of fact and conclusions of law, in order that meaningful appellate review may occur."

1. The recordings consist of radio communications between resp onding police agencies, communications between dispatchers and police, cruiser cam footage depicting t he police pursuit, and 9-1-1 calls made by Williams, both during the stand-off at his residence and the po lice chase. In Williams' 9-1-1 call, made during the police chase, Williams was agitated, demanding, and told a dispatcher to keep the police back because he was armed with handguns and rifles.Warren CA2020-04-026

- 5 - {¶14} This court finds that the trial court adequately set forth its reasoning in rejecting certain averments in the submitted affidavits. With regard to the Fowler affidavit, the court set forth the specific averments it found or assumed to be true (by identifying them by paragraph number) and specified those averments it found to contain only legal conclusions, or facts not supported by the record, or otherwise contradicted by other

evidence and facts. {¶15} With regard to Williams' affidavits, the court again set forth those specific averments it found and accepted as true, and set forth its reas oning for the rejection of other averments, including the finding that certain averments were sp eculative, contained facts contradicted by other evidence, and facts that contradicted the law of the case or this court's previous appellate rulings. Consequently, the court provided a n explanation of its basis for discounting the credibility of certain averments in the filed a ffidavits consistent with the

standard set forth in Calhoun and no error has been demonstrated with respect to this argument. Issue No. 2: Dismissal of petition for postconviction relief {¶16} Williams argues that the court erred in denying his motion beca use he set forth substantive grounds for relief where the petition showed that the state withheld evidence that was "material" to his decision to accept or decli ne the state's plea offer. See Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct.1194 (1963). Williams argues that t he state

committed a Brady violation, which resulted in a plea that was less than knowing , intelligent,

and informed. {¶17} R.C. 2953.21 through 2953.23 set forth the means by which a con victed defendant may petition a court for postconviction relief. McKelton , 2016-Ohio-3216 at ¶ 6. Distinct from an appeal of a criminal conviction, a petition fo r postconviction relief is a collateral civil attack on a criminal judgment. Calhoun , 86 Ohio St.3d at 281. A personWarren CA2020-04-026

- 6 - seeking postconviction relief is not automatically entitled to an evidentiary hearing. Id. at 282. Rather, the petitioner must show that there are substanti ve grounds for relief requiring a hearing as demonstrated by the petition, supporting affidavit s, documentary evidence, files, and records pertinent to the case. R.C. 2953.21(D); State v. Jackson , 64 Ohio St.2d 107 (1980). Substantive grounds for relief exist where there w as a denial or infringement of the petitioner's constitutional rights of a magnitude suffic ient to render the judgment void or voidable. R.C. 2953.21(A); Calhoun at 282-283. {¶18} A petition for postconviction relief must also be timely filed pursuant to R.C. 2953.21(A)(2). Williams does not dispute that his petition – f iled 11 years after the transcripts were filed in his direct appeal – was untimely unde r R.C. 2953.21(A)(2). 2 In such cases, R.C. 2953.23 makes a limited exception for consideration of an untimely petition. The trial court may entertain petitions filed after the expirat ion of the time limit if both of the following apply: * * *the petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief * * *. The petitioner shows by clear and convincing evidence that, but for constitutional error at trial , no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted * * *. R.C. 2953.23(A)(1)(a) and (b). 3 (Emphasis added.) {¶19} Even if this court were to assume that Williams was unavoidably prevented from discovering the various materials upon which he presents h is claim, he does not argue that clear and convincing evidence demonstrates that but for th e state's alleged Brady

2. Williams' petition would be untimely whether considered und er the current 365-day limitation or the former 180-day limitation in effect at the time of Williams' 2007 guil ty plea. 3. The statute contains other exceptions, which are irrelevant for purposes of this analysis.Warren CA2020-04-026

- 7 - violation, no reasonable factfinder would have found him guilty . Instead, Williams argues that but for the claimed discovery violation, he would have ent ered into a negotiated plea agreement and admitted guilt. Thus, Williams' petition, on its face, did not meet the requirements for consideration of an untimely petition for post conviction relief. Accordingly, the trial court would have been justified in dismissing William s' petition on this basis. {¶20} Even if this court construed Williams' petition as a postsenten ce motion to withdraw a guilty plea, the result would not change. Pursuant to Crim.R. 32.1, "[a] motion to withdraw a plea of guilty or no contest may be made only bef ore sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea ." In such a motion, the defendant bears the burden of proving he suffered a manifest in justice. State v. Tringelof , 12th Dist. Clermont Nos. CA2017-03-015 and CA2017-03-016, 2017- Ohio-7657, ¶ 10. A manifest injustice is a "fundamental flaw in the proceedings th at results in a miscarriage of justice or is inconsistent with the demands of due process." State v. Hobbs , 12th Dist. Warren No. CA2012-11-117, 2013-Ohio-3089, ¶ 9. Thus, the manif est injustice standard is "an extremely high standard that is allowable only in extrao rdinary cases." State v. Miller , 12th Dist. Clermont No. CA2016-08-057, 2017-Ohio-2801, ¶ 15. T his court reviews a decision on a postsentence motion to withdraw a guilty plea for an abuse of discretion. State

v. Johnson , 12th Dist. Butler No. CA2016-07-128, 2017-Ohio-4116, ¶ 10. {¶21} Williams argues that the state violated his right to a fair tri al and cites Brady , where the United States Supreme Court held that due process req uires the prosecution to provide, upon the defense's request, evidence favorable to the defense that is material either to guilt or punishment. 373 U.S. 83 at 87-88. However, Williams' guilty plea waived all constitutional infirmities that occurred prior to the plea, including any error associated with discovery violations, except for the constitutionality of the plea itself. State v. Moxley ,Warren CA2020-04-026

- 8 - 12th Dist. Madison No. CA2011-06-010, 2012-Ohio-2572, ¶ 32-33. {¶22} Even if Williams had not waived the ability to challenge consti tutional discovery errors, he still has not alleged a Brady violation. He is not arguing that the state deprived him of any favorable evidence. He admits as such when he states in his brief that if the state had provided him with the additional evidence, " which objectively would have merited a longer sentence ," then he would have "come to the same conclusion the Judge

did – a longer sentence is possible if not likely " and that he would have accepted the plea agreement. (Emphasis added.) {¶23} Williams' essential argument is that if he had known the extent of damaging evidence in the state's possession, then he would have recogniz ed how little chance he had to succeed at trial. Furthermore, he would have expected to re ceive a longer prison sentence than offered in the plea deal and would have accepted the deal rather than plead guilty and let the court use its discretion in imposing a sente nce. However, Brady only addresses the accused's right to favorable evidence. {¶24} The state cites United States v. Ruiz , 536 U.S. 622, 633, 122 S.Ct. 2450 (2002), wherein the United States Supreme Court held that the C onstitution does not require the government to disclose exculpatory, material, impeachment e vidence prior to entering into a plea agreement with a criminal defendant. The Court exp lained that by entering a guilty plea, a defendant "forgoes not only a fair trial, but al so other accompanying constitutional guarantees." Id. at 629. Thus, if the government was not required to disclose exculpatory impeachment evidence prior to entering into a plea agreement, then the state here would not be required to disclose inculpatory and aggravating evidence prior to entering into a plea agreement. {¶25} Finally, we note that there is no evidence that the state's all eged failure to turn over the materials caused Williams to suffer any prejudice at s entencing. Williams does notWarren CA2020-04-026

- 9 - contend, nor does the record indicate that the sentencing court ever possessed, much less reviewed, the evidence that Williams argues was wrongly withhel d. Therefore, there is no evidence that the court's sentencing decision was impacted by t he state's alleged failure to disclose the materials. And, as argued by Williams, it is prob able that the court's sentence would have been greater had the court reviewed those materials prior to imposing sentence. As such, this court finds that Williams has not set forth a fun damental flaw in the proceedings that resulted in a miscarriage of justice or that w as inconsistent with the demands of due process. The trial court did not abuse its disc retion in dismissing Williams' petition. Issue No. 3. Dismissal of petition without hearing {¶26} Finally, Williams argues that the court abused its discretion i n dismissing his petition without first scheduling an evidentiary hearing. For the reasons just discussed, Williams was not entitled to postconviction relief under the pr ovisions of R.C. 2953.23(A)(1). Therefore, Williams would not be entitled to an evidentiary hea ring and the court did not

abuse its discretion. This court overrules Williams' sole assi gnment of error. {¶27} Judgment affirmed.

HENDRICKSON, P.J., and M. POWELL, J., concur.