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State v. Miller

Court of Appeals of Ohio, Eleventh District, Geauga

July 22, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
RAYMOND A. MILLER, Defendant-Appellant.

          Civil Appeal from the Geauga County Court of Common Pleas. Case No. 2017 C 000001.

          James R. Flaiz, Geauga County Prosecutor, and Nicholas A. Burling, Assistant Prosecuting Attorney, Courthouse Annex, (For Plaintiff-Appellee).

          Raymond A. Miller, pro se, (Defendant-Appellant).

          OPINION

          TIMOTHY P. CANNON, J.

         {¶1} Appellant, Raymond A. Miller, appeals an entry of the Geauga County Court of Common Pleas, denying his Petition to Vacate or Set Aside Judgment of Conviction or Sentence. The judgment is affirmed in part and reversed in part, and the matter is remanded for further proceedings consistent with this opinion.

         {¶2} On July 12, 2017, pursuant to a plea agreement, appellant pled guilty to five felony charges and was sentenced to twenty years in prison. Following the sentencing hearing, appellant filed a pro se motion to withdraw his guilty plea, alleging ineffective assistance of counsel, which the trial court denied.

         {¶3} Appellant noticed a direct appeal from the judgment of conviction and the denial of his motion to withdraw his guilty plea. State v. Miller, 11th Dist. Geauga No. 2017-G-0136, 2018-Ohio-4379. In his first assignment of error, appellant asserted he was deprived of his constitutional right to the effective assistance of counsel. Id. at ¶12. Specifically, he argued ineffective assistance due to counsel's (1) lack of motion practice and waiver of appellant's speedy trial rights; (2) failure to alert the trial court of a "near" error regarding postrelease control; and (3) informing appellant that his wife/co-defendant would be charged with contempt of court if she refused to testify against him, which resulted in appellant feeling "threatened" and "obligated" to plead guilty. Id. at ¶16-18.

         {¶4} This court affirmed the trial court's judgments on October 29, 2018. Id. at

         ¶39. We concluded appellant's first two arguments under his ineffective assistance of counsel claim were without merit. Id. at ¶16-17. With regard to the third argument, we held, in pertinent part, as follows:

Finally, the merits of this argument, and appellee's response, largely rely on alleged conversations that took place between appellant and defense counsel, as well as agreements allegedly made by appellant's wife as part of her own plea agreement. These types of matters that are de hors the trial court record cannot be addressed in this appeal. An allegation that appellant's guilty plea was not voluntary because defense counsel allegedly 'threatened' him to plead guilty during a private conversation must be raised in a petition for post-conviction relief.

Id. at ¶18, citing State v. Price, 11th Dist. Trumbull No. 2013-T-0088, 2015-Ohio-944, ¶29, and State v. Hathaway, 2d Dist. Greene No. 2014-CA-13, 2015-Ohio-5488, ¶18.

         {¶5} On November 26, 2018, appellant appealed this court's decision to the Supreme Court of Ohio. The Supreme Court declined jurisdiction on February 6, 2019.

         {¶6} On November 8, 2018, prior to filing his appeal in the Supreme Court, appellant petitioned the trial court, pro se, in a document entitled, "Petition to Vacate or Set Aside Judgment of Conviction or Sentence (Evidentiary Hearing Requested)." The first paragraph explains that appellant "petitions this Court for Post-Conviction relief pursuant to R.C. 2953.21 to vacate petitioner's conviction on the basis that it is void and/or voidable under the United States and/or Ohio Constitution. Petitioner sets forth below operative facts to establish substantive grounds for relief, R.C. 2953.21(C)." Appellant set forth two claims for relief:

[1.] Mr. Miller's Conviction and Sentence are void and/or voidable. Mr. Miller was denied his Constitutional Rights to Effective Assistance of Counsel when defense counsel coerced Mr. Miller into entering a guilty plea with the continuous threats of Miller's wife/co-defendant testifying against Miller. This is a violation of Mr. Miller's Sixth Amendment, U.S. ...

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