On
September 11, 2014, the Hamilton County grand jury indicted
Carlton for aggravated burglary with two firearm
specifications in violation of Ohio Rev. Code §
2911.11(A)(2) (count 1) and two counts of felonious assault
in violation of Ohio Rev. Code § 2903.11(A)(1) and
(A)(2) (counts 2
& 3). (Indictment, State Court Record, ECF No. 31, Ex
1[1]).
A trial jury convicted Carlton of the substantive offenses
but acquitted him on the firearm specifications. The trial
judge merged the two felonious assault convictions under Ohio
Revised Code § 2941.25, then sentenced Carlton to eleven
years for aggravated burglary and eight years for felonious
assault, with the terms to be served consecutively
(Sentencing Entry, State Court Record, ECF No. 31, Ex. 4).
Represented
by new counsel, Carlton appealed to the First District Court
of Appeals, asserting
(1) there was insufficient evidence to support the verdict or
that the verdict was against the manifest weight of the
evidence and (2) the verdicts were inconsistent in that the
jury convicted him of aggravated burglary but acquitted on
the firearm specifications (Appellant's Brief, State
Court Record,
ECF No. 31, Ex. 5). The First District decided the First
Assignment of Error as follows:
In his first assignment of error, Carlton argues that his
convictions for felonious assault and aggravated burglary
were not supported by sufficient evidence and were against
the manifest weight of the evidence, and that the trial court
erred in denying his motion for an acquittal. The evidence
presented at trial established that Carlton had met Kristin
Ivory on a chat line and arranged to meet her in person. The
two met for the first time at Ivory's apartment on July
21, 2014. While Carlton was there, Ivory showed him
approximately $500 that she had been saving to purchase a new
automobile. Carlton left Ivory's apartment at midnight,
but he returned around 7:00 a.m. the following morning,
asking to use her telephone to call for a ride. When Ivory
opened the door for him, Carlton pulled out a black handgun
and entered with another assailant. Carlton demanded that
Ivory give him her money. He repeatedly struck her in the
face with his handgun and choked her while his accomplice
searched her apartment. Carlton left with Ivory's
cellular telephone and her watch. Ivory suffered numerous
injuries, including the permanent loss of vision in her left
eye.
Following our review of the record, we find that, when
viewing the evidence in the light most favorable to the
prosecution, the jury could reasonably have found the
elements of felonious assault under R.C. 2903.11(A)(1) and
aggravated burglary under R.C. 2911.11(A)(2) proven beyond a
reasonable doubt. See State v.
Martin, 20 Ohio App.3d 172, 175, 20 Ohio B. 215, 485
N.E.2d 717 (1st Dist.1983).
State v. Carlton, 2016 Ohio App. LEXIS
2984[2]
(1st Dist. Jun. 22, 2016), appellate jurisdiction
declined, 149 Ohio St.3d 1409 (2017)[3].
On
September 20, 2016, Carlton applied under Ohio R. App. P.
26(B) to reopen his direct appeal, claiming he received
ineffective assistance of appellate counsel when his
appellate attorney omitted the following assignments of
error:
1. The trial court erred by not allowing into evidence
statements made by the complaining witness contained in the
affidavit for search warrant this violated U.S.C. A. 14th
Amend. due process and equal protection.
2. The appellant was denied his Sixth Amend. Right to counsel
on his appeal as of right, which appellant counsel failed to
impeach witness with admissible impeaching evidence.
3. The appellant was denied his Sixth Amend. Right to
effective assistance of counsel failed to impeach the correct
witness.
4. The trial court erred by not disclosing exculpatory
evidence of impeachment nature, pursuant to Ohio R. Crim.R.
16(B)(1)(F), to violation U.S.C.A. 14th Amend. Due process
and equal protection of the law.
(Application, State Court Record, ECF No. 31, Ex. 8). The
First District denied the Application, holding:
In his
first and third proposed assignments of error, Carlton
contends that the trial court erred in excluding from
evidence statements in the victim's affidavit in support
of a search warrant that were inconsistent with her trial
testimony, and that his trial counsel was ineffective in
failing use those statements to impeach the victim.
In his fourth proposed assignment of error, Carlton alleges
prosecutorial misconduct in failing to disclose to the
defense the complete incident report compiled by the police.
Because these
challenges depend for their resolution upon evidence outside
the trial record, the appropriate vehicle for advancing them
is a postconviction petition. See State v. Perry, 10
Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the
syllabus. Therefore, appellate counsel was not ineffective in
failing to raise these challenges in Carlton's direct
appeal.
In his fourth proposed assignment of error, Carlton further
alleges prosecutorial misconduct in failing to include on the
state's witness list two witnesses who testified during
the state's case. And in his second proposed assignment
of error, Carlton contends that he was denied the effective
assistance of counsel by counsel's failure to impeach the
victim with statements in her medical records that were
inconsistent with her trial testimony. But Carlton cannot be
said to have been denied his right to a fair trial, when the
record makes apparent beyond any reasonable doubt that, in
the absence of the alleged prosecutorial misconduct, the jury
still would have found Carlton guilty, See State v.
Smith, 14 Ohio St.3d 13, 14-15, 470 N.E.2d 883 (1984).
Nor can he be said to have been denied his right to the
effective assistance of trial counsel, when the record does
not demonstrate a reasonable probability that: but for the
alleged deficiency in trial counsel's performance, the
result of his trial would have been different. See
Strickland at 694; Bradley at paragraph
three of the syllabus.
(Entry Denying Application, State v. Carlton, State
Court Record, ECF No. 31, Ex. 11). On May 17, 2017, the
Supreme Court of Ohio declined to exercise appellate
jurisdiction. Id. at Ex. 14. Carlton filed his first
federal habeas corpus petition May 31, 2018, which he then
voluntarily dismissed without prejudice May 7, 2019. Case No.
1:18-cv-387.
On
August 13, 2018, Carlton filed a motion for leave to file a
delayed motion for new trial (State Court Record, ECF No. 27,
Ex. 15). The trial court denied the motion as being without
merit (Id. at Ex. 18) and Carlton did not appeal. He
filed another motion for new trial January 8, 2019, claiming
to be actually innocent, which the trial court likewise
denied. Id. at Exs. 19, 20.
On
November 30, 2018, Carlton filed a petition for
post-conviction relief claiming actual innocence, ineffective
assistance of trial counsel, and prosecutorial misconduct
(Petition, State Court Record, ECF No. 27, Ex. 21, Amended
Petition Ex. 22). The trial court denied both on
February 20, 2019. Id. at Ex. 23. The State Court
Record does not reflect any appeal.
On
August 25, 2019, Carlton again sought leave to file a delayed
motion for new trial (State Court Record, ECF No. 27, Ex.
36). The trial court denied the Motion (Id. at Ex.
37) and Carlton appealed. On September 30, 2020, the First
District Court of Appeals affirmed denial of the motion for
new trial. In doing so, it held:
Carlton supported his motion with "exhibits"
consisting of pages one and six of the victim's medical
records. He asserted that his trial counsel had been
ineffective in failing to use those records to challenge the
victim's competency to testify and to impeach her trial
testimony. Those "exhibits" indicate that they were
"generated" four months before trial. And the
record shows that they were provided by the state in
discovery and admitted into evidence at trial, and that the
state and defense counsel examined the victim concerning
them. The remaining challenges presented in the motion
depended for their resolution upon "exhibits" that
were not filed with the motion.
Of the missing "exhibits," those that purportedly
show the victim's criminal record were, according to the
state's response to the defense's discovery demand,
to be provided if the matter proceeded to trial, which it
did. Those records were not made a part of the record before
us, either at trial or as offered in support of Carlton's
multiple postconviction petitions and motions. The rest of
the missing "exhibits" were provided in discovery
or made a part of the record before us when offered at trial
or in support of prior postconviction petitions and motions.
The evidence demonstrably provided in discovery or offered at
trial cannot, by definition, be "newly discovered."
And Carlton failed to provide with his Crim.R. 33(B) motion
for leave an affidavit attesting to when or how he had
secured any of the evidence offered as "newly
discovered."
(Judgment Entry, State v. Carlton, State Court
Record, ECF No. 27, Ex. 43,...
