State v. David Wayne Allen

• Decision Date: 04 June 1998
• Docket Number: 98-LW-3080,72427
• Parties: STATE OF OHIO, PLAINTIFF-APPELLEE v. DAVID WAYNE ALLEN, DEFENDANT-APPELLANT CASE
• Court: Ohio Court of Appeals

STATE OF OHIO, PLAINTIFF-APPELLEE v. DAVID WAYNE ALLEN, DEFENDANT-APPELLANT

No. 72427.

98-LW-3080 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

June 4, 1998

Civil appeal from Common Pleas Court, CR-264901.

For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq., Cuyahoga County Prosecutor, John R. Mitchell, Esq., Gail Denise Baker Esq., Assistant County Prosecutors, Justice Center - Courts Tower, 1200 Ontario Street, Cleveland, OH 44113.

For Defendant-Appellant: David H. Bodiker, Esq., Ohio Public Defender, Michael J. Benza, Esq., J. Joseph Bodine, Esq. Assistant State Public Defenders, Office of the Ohio Public Defender, 8 East Long Street, 11th Floor, Columbus, OH 43215-2998.

OPINION

TIMOTHY E. McMONAGLE, P.J.

Defendant-appellant, David Wayne Allen ("appellant"), appeals the decision of the Cuyahoga County Common Pleas Court that denied his petition for post-conviction relief. For the reasons that follow, we affirm.

The record reflects that appellant was convicted and sentenced to death for the January 1991 murder of Chloie English. After exhausting the direct appeal process, appellant filed a petition for post-conviction relief on September 20, 1996. Contemporaneous with the filing of this petition, appellant filed several motions, including a motion for the voluntary recusal of the trial court judge. When no ruling was forthcoming on the motion, appellant sought to disqualify the judge by filing an affidavit of prejudice with the Ohio Supreme Court on November 19, 1996.^[1] Appellant's request for disqualification was denied on December 24, 1996.

Appellee, State of Ohio ("State"), filed a motion to dismiss appellant's petition on March 18, 1997. In its findings of fact and conclusions of law dated March 31, 1997 and journalized April 4, 1997, the trial court denied appellant's petition without conducting a hearing and without giving appellant an opportunity to

respond to the state's motion to dismiss.

Appellant is now before this court and assigns the following errors for our review:

I.

A CAPITAL PETITIONER HAS THE RIGHT TO A FAIR AND IMPARTIAL JUDGE.

II.

FAILURE OF THE TRIAL COURT TO ACTUALLY REVIEW THE RECORD OF PROCEEDINGS BEFORE RULING UPON A PETITION FOR POST-CONVICTION RELIEF DENIES A CAPITAL PETITIONER THE RIGHT TO A FAIR PROCEEDING AND DUE PROCESS OF LAW.

III.

OHIO'S POST-CONVICTION SCHEME IS NOT AN ADEQUATE CORRECTIVE PROCESS.

IV.

THE TRIAL COURT ERRED BY DISMISSING ALLEN'S PETITION WITHOUT FIRST CONDUCTING AN EVIDENTIARY HEARING.

V.

ALLEN SET FORTH SUFFICIENT EVIDENTIARY SUPPORT TO MERIT A HEARING ON HIS POST-CONVICTION CLAIMS.

I.

Under his first assignment of error, appellant challenges the ability of the trial court judge to be fair and impartial in deciding the merits of appellant's petition for post-conviction relief and requests that his case be remanded to the trial court and assigned to a different judge. Specifically, he argues that the judge would be called as a witness as to why the trial court denied appellant's requests to disqualify a potential juror and for funds to hire expert witnesses during the mitigation phase of

trial.

These are the very same arguments raised by appellant in his application for disqualification that was filed with, and ruled on, by the Ohio Supreme Court. In its entry denying the application, Chief Justice Thomas J. Moyer stated:

A judge who presided at trial is not disqualified from hearing the defendant's petition for post-conviction relief. In re Disqualification of Spicer (November 20, 1989), 89-AP-201, unreported. Although I and two members of the (sic) this Court believed that the petitioner's conviction and death sentence should have been reversed because of the trial court's ruling on the defense challenge of a juror, the mere disagreement with a judge's rulings of law does not demonstrate a bias or prejudice that mandates that judge's disqualification. See In re Disqualification of Murphy (1988), 36 Ohio St.3d 605.

Moreover, the mere suggestion that a judge will be called as a witness does not automatically result in the disqualification of that judge. In re Disqualification of Gorman (1993), 74 Ohio St.3d 1251. Being familiar with the provisions of Canon 3(C)(1)(a) of the Code of Judicial Conduct and Rule 605 of the Rules of Evidence, [the trial court judge] will conduct herself accordingly if called as a witness at the post-conviction relief hearing.

Thus, appellant is now asking this court to rule on an issue already addressed and ruled on by our Supreme Court. This we cannot do.

Accordingly, appellant's first assignment of error is not well taken and is overruled.

II.

Under his second assignment of error,^[2] appellant contends that the trial court failed to review the entire file as required by R.C. 2953.21 before ruling on appellants petition. As such, he requests that this court remand this case to the lower court so that his petition can be reviewed in compliance with the statute.

The statutory framework governing post-conviction relief is set forth in R.C. 2953.21. This statute provides a mechanism for criminal defendants to petition the court for an evidentiary hearing and request relief on the basis that their convictions are void or voidable on state or federal constitutional grounds. Pertinent to this assignment of error is subsection (C), which provides, in part:

Before granting a hearing the court shall determine whether there are substantive grounds for relief. In making such a determination, the court shall consider, in addition to the petition and supporting affidavits, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court's journal entries, the journalized records of the clerk of the court, and the court reporter's transcript. * * * If the court dismisses the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal.

As the statute provides, the trial court is to review the entire record before ruling on the petition. Appellant, in this case, claims that the trial court did not review at least three boxes of evidence or the transcripts and essentially rubber-stamped the state's opposition brief. In support of this contention, appellant submits the affidavit of an investigator assisting in the preparation of his case who inspected the file, photographed the sealed boxes and copied the "logbook" of signatures signifying those individuals who had signed out transcripts. Appellant contends that the sealed boxes and lack of the trial judge's signature on the "logbook" signify that the trial court could not have possibly reviewed the entire file. We disagree.

Appellant filed his petition in September 1996. At the time of this filing, the entire record was with the Ohio Supreme Court because it was reviewing the denial of appellant's Murnahan application. The Supreme Court returned the record by courier on December 31, 1996. Appellant is correct that from the time of its return until the trial court ruled on the petition, the record was in this court. Nonetheless, it does not follow that the trial court did not have an opportunity to review the record.

Contrary to the affidavit in support of appellant's motion to remand, this court does not utilize a "logbook" to designate those individuals who sign out a transcript. Rather, a sign-out system is used wherein the individual affixes his or her signature, telephone number and the case number to one of several sheets designated for that purpose. A copy of one such sheet is appended to appellant's motion as Exhibit C. As can be ascertained from this exhibit, several different individuals seeking to review several different cases are all contained on one sheet. Thus, merely because the judge's signature, or that of a staff member, does not appear on the particular sheet signed out by appellant's counsel does not mean that the trial judge did not review the transcript. To be sure, several hundred of these sheets exist at any one time in the court system and it would be necessary to review each and every one to discern if a particular transcript had been signed out.

Also contrary to the investigator's affidavit, it is not necessary for this court to issue an order so that the transcript can be removed. An order is only necessary if the case is currently on appeal in this court No case was pending in this court at the time appellant's petition was before the trial court.^[2]

Nor do the photographs of the sealed boxes signify that the trial court did not review the contents of those boxes. Appellant's investigator photographed the boxes on April 29, 1997, almost one month after the petition had been ruled upon. No evidence was presented that the boxes were in this condition during the entire three months following their return from Columbus.

Moreover, even if it could be shown that the boxes were never opened, appellant has failed to demonstrate that the failure to review the contents of these boxes resulted in any prejudicial error. The contents of each of the sealed boxes contained evidence demonstrative in nature, such as the victim's clothing, the items found in the fireplace, the victim's address cards etc. While we cannot condone a trial court's failure to review the entire record, which may or may not be true in this case, review of the items contained in the sealed boxes would not be necessary to resolve the issues raised by appellant in his petition.

Accordingly, appellant's second assignment of error is not well taken and is overruled.

III

Under his third assignment of error, appellant contends that Ohio's post-conviction process is inadequate. Appellant argues that he was denied the benefit of discovery that...