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State v. Dunning

Court of Appeals of Ohio, Fourth District, Pickaway

June 13, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
REASHAWN A. DUNNING, Defendant-Appellant.

         CRIMINAL APPEAL FROM COMMON PLEAS COURT

          Reashawn A. Dunning, Caldwell, Ohio, pro se appellant.

          Judy C. Wolford, Pickaway County Prosecuting Attorney, and Jayme Hartley Fountain, Pickaway County Assistant Prosecuting Attorney, Circleville, Ohio, for appellee.

          DECISION AND JUDGMENT ENTRY

          Peter B. Abele, Judge

         {¶ 1} This is an appeal from a Pickaway County Common Pleas Court denial of a judgment motion for post-conviction relief filed by Reashawn A. Dunning, defendant below and appellant herein. Appellant raises the following assignments of error for review:

         FIRST ASSIGNMENT OF ERROR:

         "APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL DUE TO DEFENSE COUNSEL'S ERRONEOUS ADVICE THAT HE ENTER GUILTY PLEAS TO ENHANCED-DEGREE FELONIES FOR TRAFFICKING IN DRUGS (COCAINE) BASED ON GROSS WEIGHT THAT INCLUDED OTHER MATERIAL INSTEAD OF THE WEIGHT OF ACTUAL COCAINE, IN VIOLATION OF HIS RIGHT TO DUE PROCESS."

         SECOND ASSIGNMENT OF ERROR:

         "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT'S POSTCONVICTION RELIEF PETITION WITHOUT A HEARING WHEN THE COURT FILES, THE RECORD AND DOCUMENTATION SUPPORTED SUCH A EVIDENTIARY HEARING."

         {¶ 2} On March 20, 2015 the Pickaway County Grand Jury returned an indictment that charged appellant with (1) engaging in corrupt activity in violation of R.C. 2923.32(A), with a specification, a first degree felony; (2) two counts of trafficking cocaine in violation of R.C. 2925.03(A), felonies of the second degree; (3) trafficking in heroin in violation of R.C. 2925.03(A), a second degree felony, and (4) trafficking in heroin in violation of R.C. 2925.03(A), a fifth degree felony.

         {¶ 3} On June 7, 2016, appellant, represented by counsel and pursuant to plea negotiations, entered a guilty plea. The trial court accepted appellant's plea, found appellant guilty, and imposed an eleven year prison term.

         {¶ 4} On January 18, 2017, appellant filed a Petition for Post-Conviction Relief and alleged that he received ineffective assistance of counsel that resulted in a manifest injustice. On February 8, 2017, the trial court denied appellant's petition without conducting a hearing. This appeal followed.

         {¶ 5} Appellate asserts that his guilty pleas were not knowing, voluntary and intelligent pleas because trial counsel did not advise appellant of the "correct statutory weight thresholds of drug possession offenses in R.C. 2925.11(C)(4, thus advised him to enter guilty pleas to first degree felony possession of cocaine when it was a fifth degree possession of cocaine offense [that] appellant committed." In support of his argument, appellant cites State v. Gonzales, 2016-Ohio-8319, in which the Ohio Supreme Court held that fillers, or adulterants, should not be included in the weight of the total amount of cocaine under the statute.

         {¶ 6} A criminal defendant has the initial burden in a post-conviction relief proceeding to provide evidence that contains sufficient operative facts to demonstrate a cognizable claim of constitutional error. State v. Kapper, 5 Ohio St.3d 36, 448 N.E.2d 823 (1983). However, a criminal defendant seeking to challenge his conviction through a post-conviction relief petition is not automatically entitled to a hearing. See R.C. 2953.21(C) and (E); State v. Calhoun, 86 Ohio St.3d at 282, 714 N.E.2d 905. Before a court grants an evidentiary hearing, the court must determine whether there are substantive grounds for relief, i.e. whether there are grounds to believe that an ...


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