[Cite as State v. Wilson, 2012-Ohio-4065.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98033
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ANDRE L. WILSON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-535921
BEFORE: Blackmon, A.J., Boyle, J., and Jones, J.
RELEASED AND JOURNALIZED: September 6, 2012
ATTORNEY FOR APPELLANT
Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, Ohio 44113-2098
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Mary H. McGrath
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, A.J.:
{¶1} Appellant Andre L. Wilson (“Wilson”) appeals the trial court’s
denial of his petition for postconviction relief and assigns the following three
errors for our review:
I. Defendant was denied due process of law when the
court dismissed the postconviction petition without a
hearing where defendant asserted substantive ground for
relief.
II. Defendant was denied due process of law when the
court summarily discounted evidence of support of a
petition for postconviction relief.
III. Defendant was denied due process of law when the
court failed to give any credence to petitioner’s affidavit
and the statements of two observers.
{¶2} Having reviewed the record and pertinent law, we affirm the trial
court’s decision. The apposite facts follow.
Facts
{¶3} On December 23, 2010, a jury convicted Wilson of murder,
aggravated murder, and kidnapping, along with one and three-year firearm
specifications. The trial court separately convicted Wilson of having a
weapon while under disability. On January 7, 2011, the trial court
sentenced Wilson to an aggregate prison term of 33 years to life in prison.
{¶4} Wilson filed a direct appeal from his convictions. This court
affirmed the convictions in State v. Wilson, 8th Dist. No. 96380,
2012-Ohio-102. While the appeal was pending, Wilson filed a petition for
postconviction relief in which he raised the issue that several of the jurors
were sleeping during the trial. Attached to the petition was an affidavit by
Wilson and two letters from people who attended the trial. The trial court
denied the petition noting that Wilson had raised a similar issue in his direct
appeal. The court also concluded that Wilson’s affidavit attached to his
petition was self-serving and refused to consider the letters from the two
observers of the trial because they were unsworn.
Petition for Postconviction Relief
{¶5} We will address Wilson’s three assigned errors together because
they all concern the trial court’s failure to conduct an evidentiary hearing and
failure to consider Wilson’s evidence attached to his petition.
{¶6} The trial court may summarily dismiss a postconviction petition
without a hearing where the petitioner fails to present supporting evidentiary
documents sufficient to demonstrate the existence of operative facts
supporting the petitioner’s entitlement to relief. State v. Jackson, 64 Ohio
St.2d 107, 413 N.E.2d 819 (1980), at syllabus; State v. Williams, 162 Ohio
App.3d 55, 2005-Ohio-3366, 832 N.E.2d 783, ¶ 23 (6th Dist.).
{¶7} Although a trial court should give deference to affidavits filed in
support of a postconviction relief petition, it may exercise its discretion when
assessing the credibility of the affidavits. State v. Calhoun, 86 Ohio St.3d
279, 1999-Ohio-102, 714 N.E.2d 905, paragraph one of the syllabus. A trial
court may discount self-serving affidavits from the petitioner or his family
members. State v. Moore, 99 Ohio App.3d 748, 755, 651 N.E.2d 1319 (1st
Dist.1994). An affidavit is self-serving if it is from a party that is interested
in the petitioner’s success. Id.
{¶8} The trial court did not abuse its discretion by finding that
Wilson’s affidavit was self-serving. The court also did not abuse its
discretion by refusing to consider the letters from the two observers.
Unsworn letters are not admissible and should not be considered as part of a
petition for postconviction relief. State v. Patterson, 10th Dist. No.
98AP-1369, 1999 Ohio App. LEXIS 4389 (Sept. 23, 1999); State v. Vincent, 4th
Dist. No. 92CA1894, 1993 Ohio App. LEXIS 489 (Jan. 28, 1993). Moreover,
the letters do not show how these people knew Wilson. One of the letters
was written by Roxanne Oliver, who was listed as a witness on Wilson’s
witness list; therefore, it is likely she has an interest in the outcome of the
petition. See State v. Hough, 8th Dist. No. 95953, 2011-Ohio-3690 (letters
written by those who personally know the defendant were deemed
self-serving). Wilson has not indicated whether the writer of the other letter
personally knew him.
[Cite as State v. Wilson, 2012-Ohio-4065.]
{¶9} Moreover, even if the affidavit and letters were considered, they
did not contain operative facts requiring a hearing. We have no transcript
before us, however, in reviewing his direct appeal, this court noted that there
was no evidence that jurors were sleeping at the trial and that the assertion
that jurors were sleeping was brought up by Wilson, not his attorneys, at his
sentencing hearing, after the jury had been excused. An objection to a
sleeping juror must be made at trial because the trial court has significant
discretion in how it resolves an incident with a sleeping juror. State v.
Sanders, 92 Ohio St.3d 245, 253, 2001-Ohio-189, 790 N.E.2d 90. Once the
jury is excused, it is too late to rectify the error.
{¶10} Even if Wilson contends his attorney was ineffective for
failing to object to the sleeping jurors, Wilson must show he was prejudiced
by the attorney’s failure object. State v. Guyton, 8th Dist. No. 88423,
2007-Ohio-2513 (defendant failed to show how he was prejudiced by counsel’s
failure to object to the sleeping juror). In order to prevail on a claim for
ineffective assistance of counsel, the defendant must show (1) that counsel’s
performance was deficient, and (2) that the deficient performance prejudiced
the defense so as to deprive the defendant of a fair trial. Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984); State
v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).
[Cite as State v. Wilson, 2012-Ohio-4065.]
{¶11} In order to show he was prejudiced, Wilson needs to assert the
exact testimony that the sleeping juror missed. See State v. McKnight, 107
Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, at ¶ 187. Where there is
no evidence that the allegedly sleeping juror missed large or critical portions
of the trial, there is no evidence that prejudice occurred. Sanders, 92 Ohio
St.3d at 253; see also State v. Steagall, 8th Dist. No. 83991, 2004-Ohio-5035
(because “the record does not indicate when the juror fell asleep, we cannot
determine what, if anything, the juror missed.”)
{¶12} Accordingly, the trial court properly denied Wilson’s petition
without an evidentiary hearing because he failed to submit admissible,
evidentiary documents containing sufficient operative facts to support his
claim for relief. Wilson’s three assigned errors are overruled.
{¶13} Judgment affirmed.
It is ordered that appellee recover of appellant its 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. The defendant’s conviction having been affirmed,
any bail pending appeal is terminated. Case remanded to the trial court for
execution of sentence
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE
MARY J. BOYLE, J., and
LARRY A. JONES, SR., J., CONCUR