State v. Powell

• Decision Date: 11 August 1993
• Docket Number: No. C-920539,C-920539
• Citation: 90 Ohio App.3d 260,629 N.E.2d 13
• Parties: The STATE of Ohio, Appellee, v. POWELL, Appellant. *
• Court: Ohio Court of Appeals

Page 260

90 Ohio App.3d 260

629 N.E.2d 13

The STATE of Ohio, Appellee, v. POWELL, Appellant. ^*

No. C-920539.

Court of Appeals of Ohio, First District, Hamilton County.

Decided Aug. 11, 1993.

Joseph T. Deters, Hamilton County Pros. Atty., Christian J. Schaefer and L. Susan Laker, Asst. Pros. Attys., Cincinnati, for appellee.

James Kura, Ohio Public Defender, Cynthia Yost and Randall Porter, Asst. Public Defenders, Columbus, for appellant.

PER CURIAM.

Petitioner Tony M. Powell appeals from the order denying his petition for postconviction relief pursuant to R.C. 2953.21. The petition was filed on June 6, 1991. The trial court held an evidentiary hearing on only the tenth of Powell's thirty-five causes of action. After finding from the evidence presented at that hearing that there was no basis for sustaining the claim that Powell suffered from organic brain damage, the court gave the parties the opportunity to submit memoranda and proposed findings of fact. The state filed its memorandum on May 12, 1992, and the petitioner filed his objections to the memorandum on June 10, 1992. The trial court journalized its findings of fact and conclusions of law and its entry denying relief on all thirty-five causes of action on June 12, 1992.

In this appeal, Powell advances ten assignments of error. Because none of these assignments is well taken, we affirm the judgment of the trial court.

Assignment of Error No. 1

In his first assignment of error, Powell argues that the trial court erred by adopting verbatim the prosecution's findings of fact and conclusions of law. This argument has been raised many times before this court in postconviction proceedings and we have held, as we do now, that the trial court's adoption of the findings of fact and conclusions of law submitted by the state does not, by itself, deprive the petitioner of a meaningful review of his petition for postconviction relief and does not constitute error in the absence of demonstrated prejudice. See, e.g., State v. Van Hook (Oct. 21, 1992), Hamilton App. No. C-910505, unreported, 1992 WL 308350; State v. Zuern (Dec. 4, 1991), Hamilton App. No. C-900481, unreported, 1991 WL 256497; State v. Bueke (Aug. 14, 1991), Hamilton App. No. C-900178, unreported, 1991 WL 155219. See, also, R.C. 2953.21(C). Accordingly, the first assignment of error is overruled.

Assignment of Error No. 2

In his second assignment of error, Powell challenges the trial court's refusal to grant him relief on his tenth cause of action, in which he alleged that his judgment of conviction was void or voidable when considered in light of certain newly discovered evidence that he suffered from organic brain damage. The newly discovered evidence upon which Powell relied was initially presented to the trial court in an affidavit offered in support of the petition for postconviction relief. According to the affidavit, a neuropsychologist who had examined Powell following his conviction had concluded, on the basis of various testing and a review of court psychiatric records, that Powell had an "organic mental syndrome, not otherwise specified" that caused him to lack substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. ¹

In the apparent belief that such evidence, if given credibility, would have provided substantive grounds for granting postconviction relief, the trial court elected to conduct a hearing on Powell's tenth cause of action so that a factual determination could be made with regard to whether Powell actually suffered from brain damage. After assessing the weight of the testimony presented at the hearing and reviewing the record of the trial that resulted in Powell's conviction for aggravated murder, the court found that there was, in fact, no brain damage, and concluded, therefore, that Powell was not entitled to postconviction relief on the basis of the newly discovered evidence.

Powell now devotes a considerable portion of his argument, under the second assignment of error, to an attack on the factual determination made at the postconviction hearing. By proceeding in this manner, he has either assumed that his newly discovered evidence was, in law, sufficient to give rise to a right to postconviction relief or left us to flesh out the details of an otherwise inchoately articulated theory for voiding his conviction on the basis of such evidence. We are not persuaded that the argument has any merit, particularly when it is measured against the appropriate statutory standard for determining what justifies the granting of postconviction relief in a particular case.

Under R.C. 2953.21, success on a postconviction claim is dependent upon a showing that "there was such a denial or infringement of [the petitioner's] rights" in the proceedings that resulted in his conviction that the conviction has been rendered void or voidable ² under either the Ohio Constitution or the United States Constitution. It is manifest from the terms of the statute that two elements are of fundamental importance: the violation upon which the petitioner relies to establish his right to relief must be of constitutional dimension, and it must have occurred at the time the petitioner was tried and convicted of a criminal offense. The absence of either element in a given case is, in law, fatal to a postconviction claim.

In the case sub judice, the trial court concluded that Powell was not entitled to postconviction relief because it chose not to believe, on the basis of its assessment of the newly discovered evidence, that Powell did, in fact, suffer from organic brain damage. Without deciding whether such a determination can be given any legal significance as a predicate for adjudicating Powell's tenth cause of action, we conclude that there are more compelling reasons for upholding the denial of relief on the state of this record.

Central to our analysis is the task of defining the nature of the claim asserted in the tenth cause of action. If, as the petition states, the claim is founded essentially upon newly discovered evidence, we are aware of no persuasive legal authority in Ohio standing for the proposition that evidence relevant to a mitigating factor recognized by statute in death-penalty cases, when discovered only after a defendant has been convicted and sentenced to death, can be given retroactive effect to make the conviction void or voidable. In the absence of such authority, we hold that subsequently discovered evidence is legally insufficient to provide substantive grounds for postconviction relief, because it does not, standing alone, demonstrate a constitutional violation in the proceedings that actually resulted in the conviction.

In our judgment, for the evidence cited as the basis for the tenth cause of action to provide any meaningful support for a triable postconviction claim, it would have to be argued not that such evidence was newly discovered, but that it was or should have been available when Powell was tried and convicted, and that it was not considered at that time due to some error on the part of the trial judge or some deficiency in the performance of defense counsel. ³ Viewed in this light, the evidence would at least be linked logically, for postconviction purposes, to a claimed violation occurring within the appropriate context of the trial that actually led to Powell's conviction.

If we liberally construe the tenth cause of action to advance the claim that evidence of organic brain damage was not considered at Powell's trial due to an error on the part of the trial judge, it must be held to fail as a matter of law for two reasons. First, there is absolutely no indication in this record that the judge directly prevented such evidence from being introduced at trial, or that he would have ruled such evidence inadmissible if it has been tendered in Powell's defense. ⁴ Second, to the extent that it might be argued that the judge indirectly frustrated the presentation of such evidence by denying Powell's motion for the appointment of an expert to explore the existence of possible brain damage, assertion of the claim is now barred by the doctrine of res judicata, because the issue of Powell's right to expert assistance was or should have been fully litigated at the trial or on direct appeal from the judgment of the conviction. See State v. Perry (1967), 10 Ohio St.2d 175, 39 O.O.2d 189, 226 N.E.2d 104.

The only other claim that may be said to arise from a liberal construction of the tenth cause of action is that evidence of organic brain damage was not considered at Powell's trial due to the ineffective assistance of defense counsel. If ineffective assistance is indeed the essence of the claim, we hold that Powell has failed to demonstrate a right to relief because there is nothing in this case, either in the original trial record or in the material offered in support of the postconviction petition, to allow reasonably for the conclusion that trial counsel, by failing to present evidence of brain damage prior to Powell's conviction, so undermined the proper functioning of the adversarial process that the trial could not have reliably produced a just result. See Lockhart v. Fretwell (1993), 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180; Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. The original trial record, rather than providing any benefit to Powell in this respect, actually serves to negate any triable claim to the extent that it reflects that defense counsel made reasonable efforts under the circumstances to obtain mitigating evidence for their indigent client by moving for and presenting vigorous argument in support of the appointment of expert assistance to explore the issue of brain damage. That evidence of such brain damage was ultimately found by a psychologist who examined Powell some four years after his conviction, in our judgment, does not otherwise...