MATTHEW E. GUNNER, Petitioner-Appellant,
ROBERT WELCH, Warden, Respondent-Appellee
Appeal from the United States District Court for the Northern District of Ohio at Toledo. No. 3:09-cv-03009--Benita Y. Pearson, District Judge.
John F. Potts, LAW OFFICE OF JOHN F. POTTS, Toledo, Ohio, for Appellant.
Gene D. Park, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
Before: MOORE and GRIFFIN, Circuit Judges; KORMAN, District Judge.[*]
EDWARD R. KORMAN, District Judge.
This appeal from a judgment of the United States District Court for the Northern District of Ohio denying a petition for a writ of habeas corpus raises a significant issue regarding the obligation of assigned appellate counsel in Ohio. Specifically, petitioner was convicted of drug
trafficking offenses and sentenced to two concurrent ten year mandatory-minimum sentences. Prior to trial, the prosecutor offered petitioner a plea that would have eliminated the mandatory-minimum sentence of ten years. R. 8-1, Tr. of Proceedings at 118-21 (Page ID #166-69). Instead, petitioner would have faced a sentence of three to ten years. Id. The nature of the plea was explained to petitioner by the trial judge and the prosecutor. Id. Indeed, the trial judge asked the prosecutor to place on the record the nature of the evidence against petitioner if he went to trial. Id. at 121-24 (Page ID #169-73). We need not burden this opinion with a detailed discussion of that evidence. Suffice it to say that the case as outlined by the prosecutor during the discussion of a possible plea was exceptionally compelling. Indeed, as petitioner's first counsel on appeal, Stephen D. Long, advised him, " the state had a very strong case at trial, in my opinion, and you were a proverbial 'fish in a barrel.'" R. 8-1, Letter from Stephen D. Long to Matthew Gunner (Aug. 17, 2006) at 106 (Page ID #154).
Nevertheless, petitioner did not accept the plea bargain because, as he alleges in an uncontroverted affidavit, his trial counsel " never recommended that I take the plea bargain, and encouraged me to go to trial." R. 8-1, Aff. of Matthew Gunner at 103 (Page ID #151). Instead, trial counsel told petitioner that, if he took the plea bargain, he might get sentenced to at least five years, but he could just as likely get ten years, " and if I got 10 years on a plea bargain, I had no chance to appeal, but if we lost at trial and I got 10 years, we would be able to appeal." Id. Petitioner's affidavit continues that, " I was never told that if I had never been to prison before, the Judge was required to at least consider giving me the minimum sentence of 3 years, or that by law a maximum sentence was only supposed to be given to the worst offenders. I was never told that if I took the plea bargain and got the maximum 10 years sentence, it could be appealed." Id.; see Ohio Rev. Code Ann. § 2953.08(A)(1).
After the inevitable guilty verdict that followed petitioner's rejection of the plea offer, his mother spoke with Mr. Long in an effort to explain the circumstances surrounding the rejection of the plea. According to her affidavit, " Mr. Long told me he did not want to talk to me about what happened because he could only use what was in the record and he wanted to look at the record fresh, the same way the Court of Appeals would look at it." R. 8-1, Aff. of Michelle Borowicz at 108 (Page ID #156). In his own affidavit filed in the district court, Mr. Long did not dispute the affidavit filed by petitioner's mother. R. 18-1, Aff. of Stephen D. Long at 1-2 (Page ID #317-18). Instead, he asserted that he was appointed to represent petitioner only for matters " related to his direct appeal as a matter of right." Id.
Mr. Long's narrow view of his role brings us to the heart of the issue on this appeal. A brief review of Ohio law as it relates to appeals from a judgment of conviction is necessary to place the issue in context. A claim of ineffective assistance of counsel that is dependent on facts that are not part of the trial record cannot be raised on direct appeal. Instead, it must be raised in a post-conviction proceeding pursuant to Ohio Rev. Code § 2953.21. Because the Ohio General Assembly intended that " the direct appeals process run concurrently with the post-conviction process in criminal cases," To Make Changes in the Postconviction Relief Law: Hearing on S.B.4 Before the Subcomm. on ...