652 N.E.2d 205 (Ohio App. 1 Dist. 1994), C-930498, State v. Combs

Docket Nº:C-930498.
Citation:652 N.E.2d 205, 100 Ohio App.3d 90
Opinion Judge:Per Curiam.
Party Name:The STATE of Ohio, Appellee, v. COMBS, Appellant. [*]
Attorney:Joseph T. Deters, Hamilton County Pros. Atty., and Christian J. Schaefer, Asst. Pros. Atty., Cincinnati, for appellee. James Kura, Kevin L. Fahey and Linda E. Prucha, Columbus, for appellant. Joseph T. Deters, Hamilton County Prosecuting Attorney, and Christian J. Schaefer, Assistant Prosecuting...
Judge Panel:DOAN, P.J., KLUSMEIER and BETTMAN, JJ., concur.
Case Date:August 24, 1994
Court:Court of Appeals of Ohio

Page 205

652 N.E.2d 205 (Ohio App. 1 Dist. 1994)

100 Ohio App.3d 90

The STATE of Ohio, Appellee,

v.

COMBS, Appellant. [*]

No. C-930498.

Court of Appeals of Ohio, First District, Hamilton.

August 24, 1994

Page 206

[Copyrighted Material Omitted]

Page 207

[Copyrighted Material Omitted]

Page 208

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

James Kura, Kevin L. Fahey and Linda E. Prucha, Columbus, for appellant.

PER CURIAM

  1. STATEMENT OF THE CASE

    On February 17, 1987, Ronald Dean Combs, petitioner-appellant, was convicted of the aggravated murders of Peggy and Joan Shoonover. Both convictions were accompanied by gun and death specifications. Peggy Shoonover was petitioner's former girlfriend and the mother of his child. Joan Shoonover was Peggy Shoonover's mother. On February 17, 1988, Combs received the death sentence for the murders and three years of actual incarceration for the gun specifications. Combs was unsuccessful in his appeals to this court of appeals and the Ohio Supreme Court. See, generally, State v. Combs (Sept. 19, 1990), Hamilton App. No. C-880156, unreported, 1990 WL 135000; State v. Combs (1991), 62 Ohio St.3d 278, 581 N.E.2d 1071. The United States Supreme Court subsequently denied his petition for a writ of certiorari in Combs v. Ohio (1992), 504 U.S. 977, 112 S.Ct. 2950, 119 L.Ed.2d 573.

    Combs then filed an R.C. 2953.21 petition for postconviction relief with the Hamilton County Court of Common Pleas. The trial court determined that he was not entitled to relief. Therefore, the court refused to grant a hearing on the postconviction petition and

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    entered judgment for the state. From that order, Combs brings this appeal.

  2. FIRST ASSIGNMENT OF ERROR: NO EVIDENTIARY HEARING

    In his first assignment of error, Combs argues that the trial court erred by not granting an evidentiary hearing on his petition for postconviction relief. Such a hearing was necessary, he reasons, to determine whether he was entitled to have [100 Ohio App.3d 97] the judgment or sentence set aside on the grounds that it was void or voidable under the Ohio or United States Constitutions. R.C. 2953.21(A).

    When a person files an R.C. 2953.21 petition, the court must grant a hearing unless it determines that the petitioner is not entitled to relief. R.C. 2953.21(E). To make that determination, the court must consider the petition, supporting affidavits, and files and records, including, but not limited to, the indictment, journal entries, clerk's records, and transcript of the proceedings. R.C. 2953.21(C).

    There are several reasons why a court may refuse to grant a hearing when a petition for postconviction relief is filed. The court may deny the hearing if it finds that the claim does not raise a constitutional issue, such as right to counsel or due process of law. State v. Perry (1967), 10 Ohio St.2d 175, 39 O.O.2d 189, 226 N.E.2d 104, paragraph four of the syllabus; State v. Powell (1993), 90 Ohio App.3d 260, 264, 629 N.E.2d 13, 15-16. For example, a petitioner may bring a claim of newly discovered mitigating evidence. If, however, the claim does not allege some constitutional deprivation, such as ineffective assistance of counsel, the trial court may not grant relief based on R.C. 2953.21. Powell, 90 Ohio App.3d at 264, 629 N.E.2d at 15-16.

    The court also may deny a hearing if it finds that the petition advances a constitutional claim, but that the issue "was raised or could have been raised" at the original trial or subsequent appeal. Perry at paragraph nine of the syllabus. Those claims are barred by res judicata. Id. Normally, a constitutional claim, such as ineffective assistance of trial counsel, is based on evidence in the original trial record and is barred on postconviction. See, e.g., State v. Johnson (1986), 24 Ohio St.3d 87, 88, 24 OBR 282, 283, 494 N.E.2d 1061, 1063 (brought on appeal); Perry at paragraph seven of the syllabus (barred on postconviction). It follows, therefore, that the court may apply res judicata if the petition for postconviction relief does not include any materials out of the original record to support the claim for relief. Perry at paragraph nine of the syllabus; State v. Cole (1982), 2 Ohio St.3d 112, 114, 2 OBR 661, 663-664, 443 N.E.2d 169, 171.

    Evidence outside the record by itself, however, will not guarantee a right to an evidentiary hearing. To overcome the res judicata bar, the evidence must show that the petitioner could not have appealed the constitutional claim based on the information in the original trial record. Cole, syllabus. One example of evidence outside the record that would show that the claim could not have been brought on direct appeal is evidence that alleges that, after conviction, petitioner discovered facts to indicate that the prosecutor improperly withheld favorable evidence to the accused. Perry, 10 Ohio St.2d at 179, 39 O.O.2d at 191-192, 226 N.E.2d at 107-108, citing McMullen v. Maxwell (1965), 3 Ohio St.2d 160, 32 [100 Ohio App.3d 98] O.O.2d 150, 209 N.E.2d 449, with approval. By contrast, when a petition alleges that a defendant was convicted on illegally seized evidence, but does not allege facts to show that the issue could not have been brought on direct appeal, the court may deny a hearing. Perry, 10 Ohio St.2d at 182, 39 O.O.2d at 193, 226 N.E.2d at 109.

    Another type of evidence outside the record that will not compel a hearing is evidence that does not meet a minimum level of cogency to support the claim. Cole, 2 Ohio St.3d at 115, 2 OBR at 664, 443 N.E.2d at 172; State v. Coleman (Mar. 17, 1993), Hamilton App. No. C-900811, unreported, 1993 WL 74756. For example, evidence in the form of magazine articles that are irrelevant to the issues in the petition will not overcome res judicata. State v. Bedford (Sept. 11, 1991), Hamilton App. No. C-900412, unreported, 1991 WL 175783. Finally, evidence out of the record in the form of petitioner's

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    own self-serving affidavit alleging a constitutional deprivation will not compel a hearing. State v. Kapper (1983), 5 Ohio St.3d 36, 37-38, 5 OBR 94, 95-96, 448 N.E.2d 823, 826.

    When the evidence passes this minimum threshold of showing a constitutional claim that could not have been raised on direct appeal, the court may still deny a hearing if it finds that based on all the files and records, there are no substantive grounds for relief. R.C. 2953.21(C). For example, a person other than the petitioner may submit an affidavit raising a claim of ineffective assistance of trial counsel based on evidence not presented at trial. If, however, that evidence is cumulative of, or alternative to, material presented at trial, the court may properly deny a hearing. Powell, 90 Ohio App.3d at 270, 629 N.E.2d at 19 (cumulative evidence); see, also, State v. Post (1987), 32 Ohio St.3d 380, 387-389, 513 N.E.2d 754, 762-763 (existence of alternative theories will not show ineffective assistance of trial counsel); State v. Coleman (Mar. 17, 1993), Hamilton App. No. C-900811, unreported, 1993 WL 74756. Similarly, if the evidence is irrelevant to the issues at the trial or raises a nonprejudicial constitutional claim, the evidence will not provide substantive grounds for relief. State v. Van Hook (1988), 39 Ohio St.3d 256, 263-264, 530 N.E.2d 883, 890 (disregarding irrelevant evidence will not show error at trial); State v. Jackson (1980), 64 Ohio St.2d 107, 18 O.O.3d 348, 413 N.E.2d 819, syllabus (no prejudicial deprivation).

    Finally, the court may deny a hearing if the claim does not seek to render the trial court's own judgment void or voidable. R.C. 2953.21(A). As noted by this court, "the trial court, as an inferior court, has no jurisdictional basis on which it can review the actions and decisions of superior courts." Powell, 90 Ohio App.3d at 267, 629 N.E.2d at 17. For instance, the trial court may deny a hearing if it finds that the claim raises the constitutional issue of ineffective assistance of appellate counsel, not trial counsel. State v. Murnahan [100 Ohio App.3d 99] 1992), 63 Ohio St.3d 60, 584 N.E.2d 1204, paragraph one of the syllabus; State v. Rone (Aug. 31 1983), Hamilton App. No. C-920640, unreported, 1983 WL 5172. Similarly, the trial court may deny a hearing on a claim that asserts an error made after the original conviction, such as the appellate court's incorrectly reviewing imposition of the death penalty. Powell, 90 Ohio App.3d at 267, 629 N.E.2d at 17; see, also, Murnahan, 63 Ohio St.3d at 63, 584 N.E.2d at 1207; State v. Williams (Nov. 24, 1993), Cuyahoga App. No. 64151, unreported, slip op. (Lexis) at 10-12, 1993 WL 489748; State v. Bedford (Sept. 11, 1991), Hamilton App. No. C-900412, unreported, 1991 WL 175783.

    1. Ineffective Assistance of Trial Counsel: Guilt Phase

      1. No Evidence Out of the Record

        In Combs's postconviction petition, he raised ineffective-assistance arguments in seventeen of his fifty-nine claims for relief. In the first group of these ineffective-assistance claims, he contended that his trial attorney failed to object to error during voir dire (claim 3), object to erroneous jury instructions (claim 4), file a motion to suppress Combs's out-of-court statements (claim 11, Para. 118[a], [b] ), move for a separation of witnesses (claim 11, Para. 119[d] ), request that the court redact unfairly prejudicial evidence (claim 11, Para. 122, 123), object to improper arguments and instructions (claim 11, Para. 120, 121[a]-[c]; claim 16), 1 and request certain jury instructions (claims 42, 48).

        Because none of these arguments is supported by evidence out of the record, they fail under Cole, 2 Ohio St.3d at 114, 2 OBR at 663-664, 443 N.E.2d at 172, and Perry, paragraph nine of the syllabus.

      2. Evidence out of Record: Could have been Raised on Direct Appeal

        Combs further argued that his counsel failed to object to the admission of...

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