State v. Cruz

2024 Ohio 1084

Opinion

[Cite as State v. Cruz, 2024-Ohio-1084.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

STATE OF OHIO C.A. No. 22CA011994

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE ROBERT CRUZ COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellant CASE No. 21CR103898

DECISION AND JOURNAL ENTRY

Dated: March 25, 2024

CARR, Judge.

{¶1} Defendant-Appellant Robert Cruz appeals, pro se, the judgment of the Lorain

County Court of Common Pleas dismissing his petition for postconviction relief without a hearing.

This Court affirms.

I.

{¶2} In March 2021, an indictment was filed charging Cruz with multiple serious

felonies, including aggravated murder, murder, felonious assault, tampering with evidence, and

gross abuse of a corpse. Several of the charges carried repeat violent offender specifications. The

State contended that Cruz murdered M.O., that Cruz’s girlfriend, J.M., was a material witness in

the matter, and there was evidence that Cruz confessed to J.M. about his involvement in the crimes.

The record reflects that, because of Cruz’s attempts to deter J.M. from cooperating with the State,

a no-contact order was issued. In addition, prior to trial, the State submitted a request to offer the 2

statements of J.M. without the opportunity for cross-examination pursuant to Evid.R. 804(B)(6).

The State expressed concern that Cruz’s actions would cause J.M. to be unavailable for trial.

{¶3} The matter proceeded to a jury trial. On the third day of the jury trial, a plea deal

was reached. Cruz pleaded guilty to an amended indictment. The written plea agreement is in

the record and reflects that the aggravated murder charge and the repeat violent offender

specifications would be dismissed. In addition, the parties agreed to a sentence of life with parole

eligibility after 15 years.

{¶4} The trial court sentenced Cruz to life with the possibility of parole after 15 years.

The sentencing entry reflects that the sentence was jointly recommended by the prosecution, the

victim’s family and defense counsel. Cruz did not appeal. The entry was journalized April 12,

2022.

{¶5} On March 15, 2023, Cruz filed a petition for postconviction relief. Therein, Cruz

argued that his trial counsel was ineffective in failing to have Cruz undergo a mental health

evaluation and failing to use evidence and information available to trial counsel that J.M. was

manipulated, lied to, and coerced by police into providing information against Cruz. Additionally,

Cruz maintained that police coached J.M. and that, because of that, the indictment should have

been dismissed. In support of his petition, Cruz submitted his own affidavit and that of J.M.

{¶6} The State opposed the petition asserting that Cruz had not met the standard to

warrant a hearing and that his petition was barred by res judicata. On April 20, 2023, the trial

court issued an entry concluding that Cruz failed to meet his initial burden of demonstrating

substantive grounds entitling him to relief. The trial court thus dismissed the petition without a

hearing.

{¶7} Cruz has appealed, raising three assignments of error for our review. 3

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED, TO THE PREJUDICE OF APPELLANT BY DENYING WITHOUT A HEARING HIS PETITION FOR POST-CONVICTION RELIEF WHERE DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO CONSIDER AND RAISE ISSUES RELATING TO THE DEFENDANT’S PSYCHIATRIC CONDITION PRIOR TO AND AT HIS SENTENCING HEARING.

{¶8} Cruz argues in his first assignment of error that the trial court erred in dismissing

his petition as trial counsel was ineffective in failing to request a mental health evaluation of Cruz

after trial counsel was made aware of Cruz’s mental health issues.

{¶9} “In order to grant a hearing on a timely postconviction petition, the trial court must

‘determine whether there are substantive grounds for relief.’” State v. Bunch, 171 Ohio St.3d 775,

2022-Ohio-4723, ¶ 23, quoting R.C. 2953.21(D). “In making such a determination, the court shall

consider, in addition to the petition, the supporting affidavits, and the documentary evidence, all

the files and records pertaining to the proceedings against the petitioner, including, but not limited

to, the indictment, the court’s journal entries, the journalized records of the clerk of the court, and

the court reporter’s transcript.” R.C. 2953.21(D). “If the petition ‘is sufficient on its face to raise

an issue that the petitioner’s conviction is void or voidable on constitutional grounds, and the claim

is one which depends upon factual allegations that cannot be determined by examination of the

files and records of the case, the petition states a substantive ground for relief.’” Bunch at ¶ 23,

quoting State v. Milanovich, 42 Ohio St.2d 46 (1975), paragraph one of the syllabus.

{¶10} “The Ohio Supreme Court has held that a court considering a petition for post-

conviction relief may determine the credibility of affidavits without a hearing after considering

‘all relevant factors.’” State v. Meyerson, 9th Dist. Summit No. 30260, 2023-Ohio-708, ¶ 27,

quoting State v. Calhoun, 86 Ohio St.3d 279, 285 (1999). 4

Those factors include: “(1) whether the judge reviewing the postconviction relief petition also presided at the trial, (2) whether multiple affidavits contain nearly identical language, or otherwise appear to have been drafted by the same person, (3) whether the affidavits contain or rely on hearsay, (4) whether the affiants are relatives of the petitioner, or otherwise interested in the success of the petitioner’s efforts, and (5) whether the affidavits contradict evidence proffered by the defense at trial.”

Meyerson at ¶ 27, quoting Calhoun at 285. “A court that discounts the credibility of an affidavit

should include an explanation of its basis for doing so * * * in order that meaningful appellate

review may occur.” (Internal quotations and citation omitted.) Meyerson at ¶ 27.

{¶11} “If the record on its face demonstrates that the petitioner is not entitled to relief,

then the trial court must dismiss the petition. R.C. 2953.21(D) and (E). If the record does not on

its face disprove the petitioner’s claim, then the court is required to ‘proceed to a prompt hearing

on the issues.’” Bunch at ¶ 24, quoting R.C. 2953.21(F).

{¶12} “When a trial court exercises its ‘gatekeeping’ function by determining that the

petitioner has not alleged sufficient operative facts that would establish the substantive grounds

for relief, our review is a two-step process.” State v. Mills, 9th Dist. Summit No. 29190, 2019-

Ohio-2416, ¶ 17, quoting State v. El-Jones, 9th Dist. Summit No. 26616, 2013-Ohio-3349, ¶ 5.

“First, we must determine whether the trial court’s findings of fact are supported by competent

and credible evidence. If this Court concludes that the findings are properly supported, then this

Court reviews the trial court’s decision in regard to its gatekeeping function for an abuse of

discretion.” Mills at ¶ 17, quoting El-Jones at ¶ 5. An abuse of discretion is more than an error of

law or judgment; it is a finding that the court’s attitude is unreasonable, arbitrary or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

When a petitioner’s post-conviction claim sounds in ineffective assistance of counsel, a trial court must analyze his * * * claim under the two-step test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Thus, the petitioner must show 5

that (1) counsel’s performance was deficient, and (2) the deficiency prejudiced him. Strickland at 687.

In the context of a guilty plea, prejudice will lie only if there is a reasonable probability that, but for * * * counsel’s error, [the petitioner] would not have pleaded guilty and would have insisted on going to trial. To that end, ineffective assistance will only be found to have affected the validity of the plea when it precluded the defendant from entering the plea knowingly and voluntarily.

State v. Sullivan, 9th Dist. Lorain No. 19CA011454, 22CA011859, 2023-Ohio-3520, ¶ 10, quoting

State v. Smith, 9th Dist. Summit Nos. 29779, 29780, 2021-Ohio-1177, ¶ 9. “[I]neffective

assistance of counsel arguments that do not relate to the voluntary and knowing character of the

defendant’s plea, and involve errors that occurred prior to the plea, are waived by a guilty plea.”

Smith at ¶ 9, quoting State v. Emich, 9th Dist. Medina No. 17CA0039-M, 2018-Ohio-627, ¶ 16.

{¶13} The trial court noted in its decision that the only additional information provided to

the trial court with respect to this issue was Cruz’s self-serving affidavit, which it found, even if

credible, did not indicate Cruz was insane at the time of the crimes and did not set forth sufficient

operative facts to establish substantive grounds for relief. The trial judge, who also presided at

Cruz’s trial, indicated that the evidence at trial showed that Cruz took steps to conceal his crimes,

evidencing that Cruz was not insane at the time of the crimes thereby negating the viability of an

insanity defense. See State v. Smith, 9th Dist. Summit No. 24382, 2009-Ohio-1497, ¶ 10-15.

{¶14} In his affidavit, Cruz essentially asserts that he was heavily medicated for serious

mental health issues while being held at the county jail. He alleged that multiple individuals,

including trial counsel, suggested he should receive a mental health evaluation, and yet none was

ever conducted. Cruz stated that, in the absence of a mental health evaluation, he was prevented

from preparing a defense based upon his mental health and that the medications prevented him

from comprehending the mental health options available to him. Cruz’s affidavit as it relates to

this issue is repetitive, appears to be based in part on hearsay, and fails to explain in any detail how 6

Cruz’s mental health conditions and lack of a mental health examination rendered his plea not

knowing and voluntary. See Sullivan at ¶ 10. Moreover, Cruz’s statements do not evidence that

he was incapable of knowing the wrongfulness of his conduct, see R.C. 2901.01(A)(14), such that

an insanity defense would have been viable. See Smith, 2009-Ohio-1497, at ¶ 10-15. Cruz also

has not contested on appeal the trial court’s findings that the testimony at trial supported that Cruz

took steps to cover up his crimes, thereby also evidencing that Cruz was not insane at the time the

crimes were committed.

{¶15} Cruz has failed to demonstrate that he set forth sufficient operative facts to evidence

that trial counsel was ineffective in failing to request that Cruz undergo a mental health evaluation.

Again, we are mindful that Cruz pleaded guilty and thus his arguments must be viewed through

the lens of whether any deficiency on the part of trial counsel impacted Cruz’s decision to plead

guilty. See Sullivan, 2023-Ohio-3520, at ¶ 10. Here, Cruz has not even demonstrated that his

petition was sufficient on its face to raise an issue that trial counsel’s performance was deficient;

Cruz has not challenged the trial court’s findings that the record supports that an insanity defense

would have been unsuccessful. See Smith, 2009-Ohio-1497, at ¶ 10-15. Nor has he detailed how

his mental health condition rendered his plea not knowing and voluntary. Sullivan at ¶ 10.

{¶16} To the extent that Cruz has argued that the lack of a mental health evaluation

prevented mitigation evidence from being offered at sentencing, Cruz did not raise this argument

below, and thus, it cannot be addressed here. Mills, 2019-Ohio-2416, at ¶ 13. Moreover, even if

it could be addressed, Cruz was sentenced to an agreed upon sentence, which also happened to be

the minimum sentence authorized by law given the charges. R.C. 2929.02(B)(1). Thus, Cruz

cannot demonstrate that a lack of a mental health evaluation impacted his sentence.

{¶17} Cruz’s first assignment of error is overruled. 7

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED, AND TO THE PREJUDICE OF APPELLANT, BY DENYING APPELLANT’S POST-CONVICTION PETITION WHERE TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY FAILING TO INVESTIGATE WHETHER DETECTIVE TABITHA ANGELLO COERCED AND INTIMIDATED THE WITNESS WHICH CAUSED [J.M.] TO GIVE FALSE TESTIMONY TO THE GRAND JURY.

{¶18} Cruz essentially argues in his second assignment of error that the trial court erred

in dismissing his petition without a hearing because trial counsel was ineffective in failing to bring

to light the fact that J.M. provided false testimony to the grand jury and at trial. Cruz maintains

that J.M. was coerced, lied to, and threatened by the police into testifying as she did and that her

affidavit, wherein she recants, supports that conclusion.

{¶19} The standard of review and law set forth above also applies to this assignment of

error. Thus, “[i]n the context of a guilty plea, prejudice will lie only if there is a reasonable

probability that, but for * * * counsel’s error, [the petitioner] would not have pleaded guilty and

would have insisted on going to trial. To that end, ineffective assistance will only be found to have

affected the validity of the plea when it precluded the defendant from entering the plea knowingly

and voluntarily.” Sullivan, 2023-Ohio-3520, at ¶ 10, quoting Smith, 2021-Ohio-1177, at ¶ 9.

“[I]neffective assistance of counsel arguments that do not relate to the voluntary and knowing

character of the defendant’s plea, and involve errors that occurred prior to the plea, are waived by

a guilty plea.” Smith, 2021-Ohio-1177, at ¶ 9, quoting Emich, 2018-Ohio-627, at ¶ 16.

{¶20} The trial court concluded in its judgment entry that J.M. provided consistent details

regarding the crimes during trial on direct and redirect; testimony which occurred long after the

alleged coercion took place. The trial court found that trial counsel questioned J.M. about possible

coercion and also determined that J.M.’s affidavit was “questionable in terms of motive[]” given

that she admitted at trial that she was still in love with Cruz and the two had had a romantic 8

relationship in the past. See Meyerson, 2023-Ohio-708, at ¶ 27. Cruz has not challenged these

findings.

{¶21} First, we note that all of Cruz’s allegations relate to events that occurred prior to his

plea and he has not explained in any detail how they prevented his plea from being knowing and

voluntary. See Smith, 2021-Ohio-1177, ¶ 9; Sullivan at ¶ 10. Notwithstanding the foregoing, the

trial court’s concerns about J.M.’s affidavit are also supported by the record presented to this Court.

On multiple occasions, the State expressed concern about Cruz’s efforts to inappropriately

influence J.M.; the State sought and received a no-contact order with respect to J.M.’s and Cruz’s

interactions, sought to utilize Evid.R. 804(B)(6) if J.M. became unavailable to testify at trial, and

requested that J.M. be designated a material witness. In other words, there was overwhelming

evidence in the record that Cruz, as opposed to the police, attempted to coerce and manipulate J.M.

In the context of motions for new trial, this Court has noted that “[r]ecanting affidavits and

witnesses are viewed with extreme suspicion because the witness, by making contradictory

statements, either lied at trial, or in the current testimony, or both times.” State v. Davis, 9th Dist.

Summit No. 30231, 2023-Ohio-1657, ¶ 49, quoting State v. Gray, 8th Dist. Cuyahoga No. 92646,

2010-Ohio-11, ¶ 29. Cruz has failed to show that the trial court erred in viewing J.M.’s affidavit

with suspicion or abused its discretion in ultimately concluding that Cruz failed to meet the

standard to obtain a hearing on his petition with respect to this issue.

{¶22} Cruz’s second assignment of error is overruled.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED, AND TO THE PREJUDICE OF APPELLANT, BY DENYING APPELLANT’S POST-CONVICTION PETITION WHERE THE TRIAL COURT CANNOT PROVE THAT THE DEFENDANT’S GUILTY PLEA WAS VOLUNTARY, KNOWING AND INTELLIGENT. 9

{¶23} Cruz argues in his third assignment of error that the trial court erred in denying his

petition for postconviction relief because the trial court could not prove that Cruz’s plea was

voluntary, knowing, and intelligent.

{¶24} This argument appears to relate to the trial court’s statements in its conclusions of

law. Therein, the trial court noted that Cruz had pleaded guilty, and, therefore, any claim of

ineffectiveness was waived except to the extent it impacted the voluntary, knowing, and intelligent

nature of the plea. The trial court then stated that, upon review of the plea entries and transcript,

the trial court was convinced that Cruz’s plea was made knowingly, voluntarily, and intelligently.

The trial court then went on to analyze Cruz’s actual arguments raised in his petition. Cruz did

not argue in his petition that his plea was not voluntary, knowing, and intelligent. Accordingly,

Cruz has not demonstrated that the trial court’s statements about Cruz’s plea were determinative

as to the resolution of the arguments raised in Cruz’s petition. As discussed above, Cruz did not

demonstrate that the trial court erred in dismissing his petition based on the arguments he raised.

{¶25} Cruz’s third assignment of error is overruled.

III.

{¶26} Cruz’s assignments of error are overruled. The judgment of the Lorian County

Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal. 10

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

Costs taxed to Appellant.

DONNA J. CARR FOR THE COURT

SUTTON, P. J. STEVENSON, J. CONCUR.

APPEARANCES:

ROBERT CRUZ, pro se, Appellant.

J.D. TOMLINSON, Prosecuting Attorney, and MARK ANTHONY KOZA, Assistant Prosecuting Attorney, for Appellee.