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State v. Cole

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 1, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
GEORGE COLE, Defendant-Appellant.

          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

         JUDGMENT: REVERSED AND REMANDED

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

          Allison S. Breneman, for appellant

          JOURNAL ENTRY AND OPINION

          FRANK D. CELEBREZZE, JR, PRESIDING JUDGE

         {¶ 1} 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

         {¶ 2} 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

         {¶ 3} 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.

         (¶ 4} 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.

         {¶ 5} 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.

         {¶ 6} 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.

         {¶ 7} 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.

         {¶ 8} 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]

         {¶ 9} 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 ...

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