State v. Albert Eugene Brust, 95-LW-5107

• Decision Date: 20 November 1995
• Docket Number: 95-LW-5107,95CA551
• Parties: State of Ohio, Plaintiff-Appellee v. Albert Eugene Brust, Defendant-Appellant Case
• Court: Ohio Court of Appeals

State of Ohio, Plaintiff-Appellee v. Albert Eugene Brust, Defendant-Appellant

No. 95CA551.

95-LW-5107 (4th)

Court of Appeals of Ohio, Fourth District Pike

November 20, 1995

Albert Eugene Brust, #250123, Chillicothe, Ohio, Pro Se Appellant.

Robert Junk, Assistant Pike County Prosecutor, Waverly, Ohio, for Appellee.

DECISION

Harsha J.

This is an appeal of a judgment of the Pike County Court of Common Pleas denying appellant, Albert Eugene Brust's, petition for post-conviction relief. Appellant assigns one error for our review review:

"THE TRIAL COURT ERRED IN OVERRULING MISSING APPELLANT'S POST-CONVICTION PETITION FOR RELIEF PURSUANT TO O.R.C. [SIC] 2953.21."

Within this assignment of error, appellant has provided us with six separate "Issues Presented for Review":

"THE TRIAL COURT'S UNETHICAL 'PARAPHRASING' OF APPELLANT'S ISSUES NO. [SIC] 1 AND 2, IN ITS DECISION AND JUDGMENT ENTRY FILED APRIL 24, 1995 INTENTIONALLY AVOIDED SPECIFIC ACTIONS ASSERTED TO BE MISCONDUCT BY THE PROSECUTOR AND DEFENSE COUNSEL AND AVOIDED THE SPECIFICS AS TO WHAT ALLEGED DEFENSE COUNSEL'S UNPREPAREDNESS FOR TRIAL [SIC], THUS DENYING APPELLANT HIS XIV [SIC] AMENDMENT RIGHTS TO DUE PROCESS AND EQUAL PROTECTION AND THE COURT AVOIDED THE MANDATORY REVERSAL OF APPELLANT'S CONVICTION THAT WOULD HAVE RESULTED IF THE ISSUES HAD BEEN ADDRESSED."

"DEFENSE COUNSEL, RUSSELL D. KEGLEY, DENIED APPELLANT EFFECTIVE ASSISTANCE OF COUNSEL, AS GUARANTEED BY THE VI [SIC] AND XIV [SIC] AMENDMENTS TO THE UNITED STATES CONSTITUTION, WHEN HE FAILED TO IMPEACH PROSECUTION WITNESSES JOHN RUSSELL HAMMER AND PRISCILLA SUE BRUST, EACH OF WHOM COMMITTED INTENTIONAL PERJURY IN ORDER TO HELP CONVICT PETITIONER, THUS MAKING THE CONVICTION VOID OR VOIDABLE ON CONSTITUTIONAL GROUNDS."

"PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE VI [SIC] AND XVI [SIC] AMENDMENTS OF THE UNITED STATES CONSTITUTION, WHEN TRIAL DEFENSE COUNSEL KEGLEY FAILED TO OBJECT TO OR CHALLENGE THE DEFECTIVE INDICTMENT THAT DID NOT GIVE PROPER NOTICE OF THE CRIME PETITIONER HAD COMMITTED."

"PETITIONER WAS DENIED DUE PROCESS, EQUAL PROTECTION AND A FAIR TRIAL AS GUARANTEED BY THE DUE PROCESS CLAUSE OF THE XIV [SIC] AMENDMENT OF THE UNITED STATED CONSTITUTION, WHEN THE GRAND JURY RETURNED A DEFECTIVE INDICTMENT THAT DID NOT PROPERLY GIVE NOTICE TO PETITIONER OF THE CHARGES AGAINST HIM IN WHICH HE WAS TO DEFEND HIMSELF."

"PETITIONER WAS DENIED DUE PROCESS, EQUAL PROTECTION, AND A FAIR TRIAL, AS GUARANTEED BY THE DUE PROCESS CLAUSE OF THE XIV [SIC] AMENDMENT OF THE UNITED STATES CONSTITUTION, WHEN JUDGE BEVENS CHARGED THE JURY WITH AN AMENDED INDICTMENT THAT ILLEGALLY CHANGED THE ELEMENTS OF THE CHARGE AND ALSO PROMOTED THE CONTINUED IRREGULARITIES OF THIS KANGAROO COURT."

"JUDGE BEVENS INADEQUATE FINDINGS OF FACT AND CONCLUSIONS OF LAW IN DENYING APPELLANT'S POST-CONVICTION PETITION DENIED APPELLANT DUE PROCESS OF LAW, AS GUARANTEED BY THE XIV [SIC] AMENDMENT, AND DENIED APPELLANT THE REVERSAL OF HIS WRONGFUL CONVICTION THAT WAS SUBSTANTIALLY PROVEN BY EVIDENTIARY DOCUMENTS."

On June 28, 1991, the Pike County Grand Jury returned an indictment which charged appellant with felonious assault, in violation of R.C. 2903.11(A) (2), with a firearms specification. The charges centered upon appellant's forced entry into the home of his estranged wife, Sue Brust, and appellant's subsequent firing of a shotgun at John Russell Hammer, his stepson. The case was tried to a jury, and appellant was convicted. On an appeal where appellant was represented by his trial counsel, we affirmed appellant's conviction. See State v. Brust (June 26, 1992), Pike App. No. 478, unreported.

Subsequently, appellant filed a petition for post-conviction relief which was denied by the trial court.^[1] An appeal of that petition was dismissed by this court as untimely filed. Appellant later filed a second pro se petition for post-conviction relief in the Court of Common Pleas of Pike County. Appellant moved for summary judgment, and the state failed to respond. However, the trial court denied appellant's summary judgment motion and, finding that appellant failed to demonstrate any substantive grounds for relief under Ohio's post-conviction statute, R.C. 2951.23, denied the petition for post-conviction relief. This case is now before us by virtue of appellant's timely appeal.

Our standard of review is de novo for all of appellant's alleged errors, and therefore, we are to give no deference to the trial court. State v. Elliott (July 12, 1995), Lawrence App. No. 95CA03 unreported.

Appellant's first "Issue Presented for Review" states that the trial court "negligently paraphrased" the first and second grounds for relief asserted in his post-conviction relief petition. We disagree.

Ohio courts, especially in the case of parties acting in a pro se capacity, often facilitate their review by paraphrasing the issues these parties raise. See, e.g., State v. Otis (1995), 73 Ohio St.3d 39, 40; State v. Roberts (1991), 66 Ohio App.3d 654, 657; State v. Canady (Dec. 24, 1992), Franklin App. No. 88AP-472, unreported. While a court is certainly at liberty to clarify the issues presented by the parties, it must do so in the interest of justice, and cannot in "clarifying" and deciding the issues, ignore valid arguments presented to it by the parties. See by way of analogy Fioresi v. State Farm Mut. Auto. Ins. Co. (1985), 26 Ohio App.3d 203, 204. We have often 'clarified' the issues presented to us by pro se litigants in order to provide them with a comprehensive and fair review of their case. See, e.g., State ex rel. Karmasu v. Tate (1992), 83 Ohio App.3d 199, 206; Akbar-El v. Ohio Univ. (Apr. 26, 1995), Ross App. 94CA2049, unreported; In re Paxson (July 1, 1993), Scioto App. No. 91-CA-2008, unreported. There is no reason who a trial court should be precluded from doing the same so long as it does so in the interest of justice.

Appellant's first and second grounds for relied as stated in his post-conviction petition are:

"TRIAL PROSECUTOR, ROBERT N. ROSENBERGER, COMMITTED NEGLIGENT AND WRONGFUL MISCONDUCT DURING TRIAL THAT DENIED PETITIONER HIS FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION RIGHTS TO A FAIR TRIAL, DUE PROCESS, AND EQUAL PROTECTION OF THE LAW MAKING PETITIONER'S CONVICTION VOID OR VOIDABLE UNDER CONSTITUTIONAL GROUNDS."

"DEFENSE COUNSEL, RUSSELL D. KEGLEY, COMMITTED GROSS MISCONDUCT BY FAILING TO OBTAIN PROPER DISCOVERY AND BEING UNPREPARED TO HANDLE PETITIONER'S DEFENSE AT TRIAL, DENYING PETITIONER A FAIR TRIAL, DUE PROCESS, AND EQUAL PROTECTION OF THE LAW, AS GUARANTEED BY THE XIV AMENDMENT TO THE UNITED STATES CONSTITUTION, THUS MAKING PETITIONER'S CONVICTION VOID OR VOIDABLE."

The trial court "paraphrased" these issues in the following manner:

"PROSECUTOR MISCONDUCT IN FAILING TO DISCLOSE EVIDENCE FAVORABLE TO DEFENDANT; SPECIFICALLY AN EMERGENCY ROOM TREATMENT RECORD FOR THE VICTIM A PURPORTED COPY OF WHICH IS ATTACHED TO THE PETITION."

"DEFENSE COUNSEL MISCONDUCT FOR FAILING TO OBTAIN PROPER DISCOVERY, SPECIFICALLY THE EMERGENCY ROOM RECORD, PENDING DISSOLUTION DOCUMENTS, AND A DEED THUS BEING UNPREPARED FOR TRIAL."

We have thoroughly reviewed appellant's post-conviction relief petition for any ground of relief not encompassed by the trial court's "paraphrasing" of the issues, but are unable to find one. Indeed, the argument contained in appellant's first and second grounds for relief is limited exclusively to the grounds contemplated by the trial court's clearer, more concise paraphrasing of appellant's issues. The trial court's clarification of appellant's issues was undoubtedly in the interest of justice and was entirely proper.

Next, we review the substance of appellant's arguments. In so doing, we consider whether the trial court properly decided that the above two allegations did not entitle appellant to post-conviction relief under R.C. 2953.21.

Where, as here, the trial court denies a post-conviction petition without a hearing, the trial court's decision should be affirmed if the record does not disclose and the petitioner fails allege sufficient operative facts to demonstrate that he is entitled to post-conviction relief. See State v. Kapper (1983), 5 Ohio St.3d 38, 46, certiorari denied (1983), 464 U.S. 856; State v. Greene (1993),, 86 Ohio App.3d 620, 622, motion to certify overruled (1993), 66 Ohio St.3d 1507; State v. Crabtree (May 3, 1993), Pike App. No. 92 CA 491, unreported.

Appellant specifically alleges ineffective assistance of counsel and prosecutorial misconduct. Both these allegations center upon an emergency room medical record created by the emergency room personnel who attended John Russell Hammer shortly after appellant fired at Mr. Hammer.^[2] Appellant contends that his trial counsel's failure to obtain the record and introduce it at trial was ineffective assistance. Appellant further asserts that the prosecution's failure to obtain and/or release to the defense a copy of the emergency room medical record along with the prosecution's statements that John Russell Hammer was shot constituted prosecutorial misconduct.

In a post-conviction petition which alleges ineffective assistance of counsel, before he may be entitled to an evidentiary hearing, the "petitioner bears the burden to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and that the defense was prejudiced" thereby. State v Pankey (1981), 68 Ohio St.2d 58, 59, citing State v. Jackson (1980), 64 Ohio St.2d 107, syllabus; see, also, State v. Bradley (1989), 42 Ohio St.3d 136, certiorari denied (1990), 497 U.S. 1011, rehearing denied (1990), 497 U.S. 1050, citing Strickland v. Washington (1984), 466 U.S. 668. In order for...