State v. Cole
| Decision Date | 29 December 1982 |
| Docket Number | No. 81-874,81-874 |
| Citation | 2 Ohio St.3d 112,2 OBR 661,443 N.E.2d 169 |
| Parties | , 2 O.B.R. 661 The STATE of Ohio, Appellee, v. COLE, Appellant. |
| Court | Ohio Supreme Court |
Syllabus by the Court
Where defendant, represented by new counsel upon direct appeal, fails to raise therein the issue of competent trial counsel and said issue could fairly have been determined without resort to evidence dehors the record, res judicata is a proper basis for dismissing defendant's petition for postconviction relief. (State v. Hester, 45 Ohio St.2d 71, 341 N.E.2d 304 , modified.)
On June 14, 1978, appellant, Leroy Douglas Cole, was charged with two counts each of rape and attempted rape. Although he initially pleaded not guilty and not guilty by reason of insanity, appellant later waived prosecution by indictment and entered no contest pleas to a reduced charge consisting of single counts of both gross sexual imposition and attempted rape. The trial court found him guilty of the reduced charge and subsequently sentenced him.
Assisted by new counsel, appellant appealed the lower court's decision. On appeal, no claim of ineffective assistance of trial counsel was made. In its decision rendered July 30, 1979, the court of appeals affirmed both convictions.
On November 19, 1979, appellant filed pro se in the court of common pleas a motion to vacate judgment and sentence which was subsequently treated as a petition for postconviction relief pursuant to R.C. 2953.21. Attached to the petition was an affidavit from a close family member, Donald Lee Leighton, Sr., in support of appellant's argument, based on evidence dehors the record, that he had been denied effective assistance of counsel. Upon appellee's motion, the trial court dismissed the petition without granting a hearing, ruling, in effect, that res judicata barred appellant from raising the issue of competent trial counsel in his petition for postconviction relief. On May 1, 1981, the court of appeals affirmed the lower court's disposition of appellant's petition.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Anthony Pizza, Pros. Atty., and Charles H. Sallah, Toledo, for appellee.
Randall M. Dana, Public Defender, Mark J. Lewinter and John A. Bay, Columbus, for appellant.
In the case at bar, this court is required to address only one issue: whether the court of appeals erred in affirming the trial court's dismissal of appellant's petition for postconviction relief on the basis of res judicata. We find no error and, thus, affirm the appellate court's decision.
Appellant argues that the principle of res judicata does not bar the assertion of ineffective assistance of counsel in his petition and that he should have been afforded a hearing on his claim. A criminal defendant, seeking to challenge his conviction(s) through a petition for postconviction relief, is not, however, automatically entitled to such a hearing. State v. Jackson (1980), 64 Ohio St.2d 107, 110, 413 N.E.2d 819 . Indeed, the trial court has a statutorily imposed duty to ensure that the petitioner adduces sufficient evidence to warrant a hearing. As R.C. 2953.21(C), in pertinent part, provides: "Before granting a hearing [on a petition for postconviction relief] the court shall determine whether there are substantive grounds for relief."
Moreover, this court has found res judicata to be a proper basis upon which to dismiss without hearing an R.C. 2953.21 petition. State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104 ; State v. Duling (1970), 21 Ohio St.2d 13, 254 N.E.2d 670 . As we stated in paragraph nine of the syllabus in State v. Perry, supra, in addressing for the first time the applicability of the principle of res judicata to such petitions where constitutional violations are alleged:
"Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment or conviction, or on an appeal from that judgment."
Since our pronouncement in State v. Perry, supra, this court and several lower courts have recognized exceptions to the absolute application of the doctrine of res judicata in proceedings for postconviction relief where ineffective assistance of counsel is claimed. State v. Hester (1976), 45 Ohio St.2d 71, 341 N.E.2d 304 ; State v. Milanovich (1975), 42 Ohio St.2d 46, 325 N.E.2d 540 ; State v. Carter (1973), 36 Ohio Misc. 170, 304 N.E.2d 415 . 1 Herein, as appellant upon direct appeal, was represented by new counsel who was in no way enjoined from asserting the ineffectiveness of appellant's trial counsel and as such question of effective counsel could fairly be determined without examining evidence outside the record, none of the qualifications engrafted upon the Perry decision is apposite. Moreover, to the extent paragraph two of the syllabus in State v. Hester, supra, precludes the application of the doctrine of res judicata to a claim which reasonably could have been raised upon direct appeal, said paragraph of the syllabus is hereby modified to comport with out ruling of today.
Where ineffective assistance of counsel is alleged in a petition for postconviction relief, the defendant, in order to secure a hearing on his petition, must proffer evidence which, if believed, would establish not only that his trial counsel had substantially violated at least one of a defense attorney's essential duties to his client but also that said violation was prejudicial to the defendant. State v. Jackson, supra; State v. Lytle (1976), 48 Ohio St.2d 391, 358 N.E.2d 623 ; see State v. Hester, supra. Generally, the introduction in an R.C. 2953.21 petition of evidence dehors the record of ineffective assistance of counsel is sufficient, if not to mandate a hearing, at least to avoid dismissal on the basis of res judicata. In the case at bar, however, the allegations outside the record upon which appellant relies appear so contrived, when measured against the overwhelming evidence in the record of trial counsel's competence, as to constitute no credible evidence and, thus, to justify the trial court's application of the principles of res judicata.
In his petition for postconviction relief as supplemented by the supporting affidavit, appellant cites numerous examples, of trial counsel's "incompetence." He avers, inter alia, that trial counsel misinformed him of the consequences of conviction on both the indictment and the subsequent information, was not prepared to go to trial, had...
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