State v. Cole

[Cite as State v. Cole, 2019-Ohio-3089.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 106930
v. :

GEORGE COLE, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: August 1, 2019

Civil Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-14-588878-B, CR-14-589681-A, and CR-14-590944-B

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecutor, and
Katherine Mullin, Assistant County Prosecutor, for
appellee.

Allison S. Breneman, for appellant.

FRANK D. CELEBREZZE, JR., P.J.:

Defendant-appellant, George Cole (“appellant”), brings the instant

appeal challenging the trial court’s judgment denying his petition for postconviction

relief. Specifically, appellant argues that the trial court erred in finding that

appellant failed to attach supporting affidavits to his petition, the trial court erred in
finding that appellant failed to present sufficient evidence demonstrating

substantive grounds for relief, and that the trial court erred and abused its discretion

in denying appellant’s petition without holding a hearing. After a thorough review

of the record and law, this court reverses and remands for further proceedings

consistent with this opinion.

I. Factual and Procedural History

The instant appeal pertains to a string of six burglaries that occurred

between July 2014 and August 2014 in Cleveland, Fairview Park, and Rocky River,

Ohio. Appellant was charged in three separate criminal cases for his involvement in

the burglaries: Cuyahoga C.P. Nos. CR-14-590944-B, CR-14-588878-B, and CR-14-

589681-A.

Appellant’s girlfriend, Danielle Panagopoulos (“Danielle”), and his

brother, John Cole (“John”), were also charged in the three criminal cases as

codefendants. Danielle and John entered guilty pleas.

Unlike his codefendants, appellant defended against the charges. A

jury trial on all three criminal cases commenced on June 8, 2015. Danielle testified

on behalf of the state.

At the close of trial, the jury found appellant guilty on all counts. On

June 15, 2015, the trial court imposed an aggregate prison sentence of 48 years.

On June 25, 2015, appellant filed a direct appeal challenging his

convictions and the trial court’s sentence. State v. Cole, 8th Dist. Cuyahoga Nos.
103187, 103188, 103189, and 103190, 2016-Ohio-2936.1 On May 12, 2016, this court

modified appellant’s burglary convictions on Counts 26 and 29 in CR-14-590944-B

from second-degree felonies to third-degree felonies and remanded the case for

resentencing on these modified convictions. This court otherwise affirmed

appellant’s convictions and the trial court’s sentence. Finally, this court ordered the

trial court to issue a nunc pro tunc sentencing entry incorporating its consecutive-

sentence findings.

While his appeal was pending, appellant filed a petition for

postconviction relief on April 7, 2016. In his petition for postconviction relief,

captioned “petition to vacate or set aside judgment of conviction or sentence,”

appellant asserted that he was entitled to relief under R.C. 2953.21 based on (1)

prosecutorial misconduct and (2) ineffective assistance of counsel.

The trial court summarily denied appellant’s petition on April 15, 2016,

without holding a hearing. Subsequently, on February 20, 2018, the trial court

issued findings of fact and conclusions of law pertaining to appellant’s petition for

postconviction relief.2

1 See appellant’s direct appeal for a full recitation of the factual history and the
evidence adduced at trial.
2 The trial court issued findings of fact and conclusions of law after appellant

sought a writ of mandamus based, in part, on the trial court’s failure to issue findings of
fact and conclusions of law in denying the petition for postconviction relief. State ex rel.
Cole v. Shirley Strickland Saffold, Judge, 8th Dist. Cuyahoga No. 106443, 2018-Ohio-
1625.
 On March 13, 2018, appellant, acting pro se, filed the instant appeal

challenging the trial court’s February 20, 2018 judgment. Appellant assigns three

errors for review:

I. The [a]ppellant was denied due process protection pursuant to the
Fourteenth Amendment to the U.S. Constitution right to a fair hearing
where the trial court abused its discretion and intentionally
lied/falsified records when it ruled that [a]ppellant did not
submit/attach the sworn affidavits of [Danielle] and [John] to the
postconviction petition.

II. The trial court committed prejudicial error in its judgment, when
the trial court ruled that [a]ppellant’s petition failed to contain
sufficient evidence to support his request for an evidentiary hearing.

III. The trial court erred by denying [a]ppellant’s motion for post-
conviction relief without an evidentiary hearing.

II. Law and Analysis

Appellant’s three assignments of error pertain to the trial court’s

judgment denying his petition for postconviction relief.

A. Standard of Review

This court reviews a trial court’s ruling on a petition for postconviction

relief for an abuse of discretion. State v. White, 8th Dist. Cuyahoga No. 90544,

2008-Ohio-4228, ¶ 19, citing State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d

905 (1999). A trial court abuses its discretion when its decision is unreasonable,

arbitrary, or unconscionable. State ex rel. Shisler v. Ohio Pub. Emps. Retirement

Sys., 122 Ohio St.3d 148, 2009-Ohio-2522, 909 N.E.2d 610, ¶ 11.

Under R.C. 2953.21, a prisoner may obtain postconviction relief “only
if the court can find that there was such a denial or infringement of the
rights of the prisoner as to render the judgment void or voidable under
the Ohio Constitution or the United States Constitution.” State v.
 Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph four of the
syllabus. A postconviction petition does not provide a petitioner a
second opportunity to litigate his or her conviction. State v. Steffen, 70
Ohio St.3d 399, 410, 639 N.E.2d 67 (1994); State v. Smith, 8th Dist.
Cuyahoga No. 93534, 2010-Ohio-1869, ¶ 11. Rather, it is a means to
reach constitutional issues that would otherwise be impossible to reach
because the evidence supporting those issues is not contained in the
record. Id. at ¶ 12.

State v. Obermiller, 8th Dist. Cuyahoga No. 101456, 2019-Ohio-1234, ¶ 7-8.

B. Supporting Affidavits

In his first assignment of error, appellant argues that the trial court

erred in finding that appellant failed to attach supporting affidavits to his petition.

Specifically, appellant asserts that the trial court “abused [its] discretion and

intentionally lied/falsified records when it ruled that [a]ppellant did not

submit/attach the sworn [affidavits] of [Danielle] and [John] to the postconviction

petition[.]” Appellant’s brief at 3.

As an initial matter, we categorically and unequivocally reject

appellant’s argument that the trial court “lied/falsified records” in finding that

appellant failed to present supporting evidentiary documents — the affidavits of

Danielle, John, and appellant — in support of the petition for postconviction relief.

This assertion is entirely unsupported by the record. The petition for postconviction

relief that appellant filed on April 7, 2016, did not contain any supporting

attachments, exhibits, or affidavits.

The record reflects, however, that these affidavits were, in fact,

attached to the motion for appointment of counsel that appellant filed on the same
day, April 7, 2016. In his motion for appointment of counsel, appellant requested

“an order appointing counsel to represent [a]ppellant on the accompanying

[p]etition for [p]ostconviction [r]elief.” The state acknowledges that appellant did,

in fact, attach the affidavits of Danielle and John to his motion for appointment of

counsel, filed on the same day as the petition for postconviction relief.3

Danielle’s affidavit, executed on August 28, 2015, averred, in relevant

part,

I testified in [George Cole’s] trial and what I said was untrue. I was
coached into saying false statements by the prosecutors [and]
detectives and was promised that if I said what they coached me to say
I was promised to get a deal for my part in the case. George Cole never
told me anything pertaining this case he never told me any information.
What I said in court that was all false statements against George Cole.

John’s affidavit, executed on February 25, 2016, averred, in relevant

part, “I was willing to give my testimony in said case * * * George had no knowledge

and wasn[’]t present for these burglar[ies] I would call or text Danielle’s phone * * *

to set up times and dates[.] I can go into further details in my testimony. I told

[G]eorge’s attorney * * * that I would testif[y] to what happened. But I was never

called to court.”

Finally, appellant’s affidavit, executed on February 25, 2016, averred,

in relevant part, “I told my [attorney] that I wanted my brother John Cole as a

3 We note that appellant did not have a right to counsel for purposes of filing his
petition for postconviction relief, nor was he entitled to have counsel appointed for any
postconviction proceedings, which are civil in nature. See State v. Carter, 8th Dist.
Cuyahoga No. 106690, 2018-Ohio-4115, ¶ 16; State ex rel. Jenkins v. Stern, 33 Ohio St.3d
108, 110, 515 N.E.2d 928 (1987).
witness in my trial. I don[’]t know why counsel failed to call any of my witnesses to

my defense. I provided [counsel] with names and info of my [witnesses] that was

willing to testif[y] on my behalf[.]”

We further note that appellant’s petition for postconviction relief and

motion for appointment of counsel were filed pro se. It is well-established that pro

se litigants must follow the same procedures as litigants that are represented by

counsel. See State ex rel. Gessner v. Vore, 123 Ohio St.3d 96, 2009-Ohio-4150, 914

N.E.2d 376, ¶ 5. “‘It is well established that pro se litigants are presumed to have

knowledge of the law and legal procedures and that they are held to the same

standard as litigants who are represented by counsel.’” (Emphasis deleted.) State

ex rel. Fuller v. Mengel, 100 Ohio St.3d 352, 2003-Ohio-6448, 800 N.E.2d 25, ¶ 10,

quoting Sabouri v. Ohio Dept. of Job & Family Servs., 145 Ohio App.3d 651, 654,

763 N.E.2d 1238 (10th Dist.2001).

In the instant matter, the record reflects that appellant attached the

supporting affidavits to the wrong filing. Appellant should have attached the

supporting affidavits to his petition for postconviction relief, rather than his motion

for appointment of counsel. As noted above, appellant did not have a right to

counsel for purposes of postconviction relief proceedings. Furthermore, R.C.

2953.21(A)(1)(a), governing petitions for postconviction relief, provides, in relevant

part, “[t]he petitioner may file a supporting affidavit and other documentary

evidence in support of the claim for relief.”
 Although appellant’s failure to follow the proper procedure would

ordinarily not be excused based on the fact that appellant filed his petition and

motion for appointment of counsel pro se, after reviewing the record in this case, we

find that the trial court erred by denying appellant’s petition for postconviction relief

without considering the supporting affidavits that appellant submitted with the

wrong filing.

First, appellant’s petition for postconviction relief and motion for

appointment of counsel were filed on the same day, April 7, 2016. Furthermore, the

motion for appointment of counsel to which the supporting affidavits were attached

specifically referenced the “accompanying [p]etition for [p]ostconviction [r]elief.”

Second, the record reflects that the trial court denied appellant’s

petition primarily on the basis that appellant did not support his petition with

documentary evidence — particularly the affidavits of Danielle and John or an

affidavit of his own — demonstrating that he is entitled to relief. See conclusions of

law 2, 4, 5, 6, and 7. The record further reflects that this is not a case in which the

trial court considered the affidavits and determined that they were unreliable or not

credible. See State v. Lewis, 4th Dist. Ross No. 10CA3181, 2011-Ohio-5224, ¶ 21

(although the trial court could have found that the supporting affidavit lacked

credibility for “any number of reasons,” the trial court discounted a supporting

affidavit for an incorrect reason, and abused its discretion by not considering the

evidence).
 The trial court summarily denied appellant’s petition for

postconviction relief and motion for appointment of counsel on April 15, 2016. The

trial court’s judgment entry does not reference the affidavits of Danielle, John, or

appellant, which appellant attached to his motion for appointment of counsel.

Although the trial court’s findings of fact and conclusions of law reference

appellant’s motion for appointment of counsel, they do not reference the affidavits

that had been attached thereto. See findings of fact 8, 11.

Finally, the trial court does not reference the fact that appellant

attached the supporting affidavits to the wrong filing. There is no indication in the

record before this court that the trial court received, reviewed, or was aware that

appellant had, in fact, submitted the supporting affidavits — albeit to the wrong

filing.

For all of the foregoing reasons, we find that the trial court erred in

denying appellant’s petition for postconviction relief without considering the

supporting affidavits that appellant attached to the accompanying motion for

appointment of counsel. We emphasize that our decision is not based on the merits

of appellant’s petition, his claims of prosecutorial misconduct and ineffective

assistance of counsel, or the assertions of Danielle, John, and appellant in the

supporting affidavits.

Appellant’s first assignment of error is sustained. In light of our

resolution of appellant’s first assignment of error, appellant’s second and third

assignments of error are moot.
 The trial court’s judgment denying appellant’s petition for

postconviction relief is reversed, and the matter is remanded to the trial court for

further proceedings consistent with this opinion. On remand, the trial court shall

determine whether appellant is entitled to postconviction relief based on the

arguments raised in his petition and the supporting affidavits of Danielle, John, and

appellant.

Judgment is reversed and remanded.

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

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue of this court directing the common

pleas 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.

FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and
RAYMOND C. HEADEN, J., CONCUR