State v. Davis, 2008 Ohio 6841 (Ohio App. 12/23/2008), 2008-CA-16.

CourtUnited States Court of Appeals (Ohio)
Citation2008 Ohio 6841
Docket NumberNo. 2008-CA-16.,2008-CA-16.
PartiesState of Ohio, Plaintiff-Appellee, v. Roland T. Davis, Defendant-Appellant.
Decision Date23 December 2008

Kenneth W. Oswalt, Licking County Prosecutor, 20 S. Second Street, Fourth Floor, Newark, OH 43055, Columbus, OH 43215, for Plaintiff-Appellee.

Joseph E. Wilhelm, T. Kenneth Lee, Office of Public Defender, 8 E. Long Street, 11th Floor, for Defendant-Appellant.

Before: Hon. W. Scott Gwin, P.J., Hon. Sheila G. Farmer, J., Hon. Patricia A. Delaney, J.

OPINION

GWIN, P.J.

{¶1} Defendant-appellant Roland T. Davis appeals from the November 14, 2007 and January 14, 2008, Judgment Entries of the Licking County Court of Common Pleas overruling his Amended Petition for Post Conviction Relief [hereafter referred to as "PCR petition"] and granting the plaintiff-appellee State of Ohio's motion for summary judgment.

STATEMENT OF FACTS IN THE CASE

{¶2} This appeal stems from the murder of 86-year-old Elizabeth Sheeler by an intruder to her apartment. The intruder murdered Sheeler by stabbing her in the neck and chest. The intruder stole money from the apartment and fled the scene. The murder went unsolved for almost four years. In 2004, DNA testing identified defendant-appellant, Roland T. Davis, as the murderer of Sheeler.

{¶3} Appellant was indicted on one count of aggravated murder while committing kidnapping, aggravated robbery, or aggravated burglary. Count one contained four death-penalty specifications: murder for the purpose of escaping detection, apprehension, trial, or punishment, R.C. 2929.04(A)(3); murder while committing, attempting to commit, or fleeing after committing kidnapping, R.C. 2929.04(A)(7); murder while committing, attempting to commit, or fleeing after committing aggravated robbery, R.C. 2929.04(A)(7); and murder while committing, attempting to commit, or fleeing after committing aggravated burglary, R.C. 2929.04(A)(7).

{¶4} Appellant was indicted with four additional counts: Count 2 charged appellant with murder, Count 3 charged kidnapping, Count 4 charged aggravated robbery, and Count 5 charged aggravated burglary. The jury found him guilty of all charges, and he was sentenced to death. For a complete statement of the underlying facts see State v. Davis, 116 Ohio St.3d 404, 880 N.E.2d 31, 2008-Ohio-2.

{¶5} On January 3, 2008, the Ohio Supreme Court upheld appellant's convictions and his death sentence after independently reviewing his sentence as required by R.C. 2929.05(A). State v. Davis, supra. Appellant filed a petition for certiorari with the United States Supreme Court which was denied on October 6, 2008. Davis v. Ohio (2008), ___ U.S. ___, 129 S.Ct. 137.

{¶6} Appellant filed his post-conviction petition pursuant to R.C. 2953.21 on June 23, 2006. The State filed its Answer to appellant's post-conviction petition and a Motion for Summary Judgment. Appellant filed his Response to the State's Motion to Dismiss, and he requested a scheduling order that the State opposed. Appellant filed a Motion for Leave to Respond to the State's Motion for Summary Judgment, and the trial court granted appellant Leave to File a Response. On July 20, 2006, appellant filed a Motion for Leave to Amend Post-Conviction Petition, an Amended Post-Conviction Petition, a Motion for DNA Testing, a Motion for Discovery and Evidentiary Hearing, a Motion for Appropriation of Funds for Dr. Robert L. Smith, Clinical Psychologist, and a Reply Opposing the State's Motion for Summary Judgment. The State opposed all of those pleadings. On November 8, 2007 the State filed a Supplemental Motion for Summary Judgment that addressed appellant's Fifteenth and Sixteenth Grounds for Relief. On November 14, appellant mailed his Response to the State's Supplemental Motion for Summary Judgment; however, on that day, the trial court issued its findings of fact and conclusions of law. Appellant then filed a Motion for New Trial under Civ.R. 59(A). The trial court re-considered its decision in light of appellant's Response to the State's Supplemental Motion for Summary Judgment and issued its final entry on January 14, 2008.

{¶7} Appellant timely filed his notice of appeal and he is now before this Court on an appeal of right.

{¶8} Appellant raises the following assignments of error for our consideration:

{¶9} "I. APPELLANT'S RIGHT TO DUE PROCESS AND EQUAL PROTECTION WAS VIOLATED BECAUSE THE TRIAL COURT DISMISSED HIS POST-CONVICTION PETITION ON PROCEDURAL GROUNDS. U.S. CONST. AMEND. XIV; OHIO CONST. ART. I, §§ 2, 16.

{¶10} "II. APPELLANT'S DUE PROCESS AND EQUAL PROTECTION RIGHTS WERE VIOLATED BECAUSE THE TRIAL COURT DENIED MOTIONS THAT WERE NECESSARY TO FULLY AND FAIRLY LITIGATE HIS GROUNDS FOR POST-CONVICTION RELIEF. U.S. CONST. AMEND. XIV; OHIO CONST. ART. I, § 16.

{¶11} "III. THE TRIAL COURT ERRED IN DISMISSING APPELLANT'S POST-CONVICTION PETITION WHEN HE PRESENTED SUFFICIENT OPERATIVE FACTS TO MERIT RELIEF OR, AT MINIMUM, AN EVIDENTIARY HEARING."

Standard of Review

{¶12} R.C. 2953.21(A) states, in part, as follows: "(1) Any person who has been convicted of a criminal offense or adjudicated a delinquent child and who claims that there was such a denial or infringement of the person's rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief".

{¶13} A petition for post-conviction relief is a means to reach constitutional issues which would otherwise be impossible to reach because the evidence supporting those issues is not contained in the record of the petitioner's criminal conviction. State v. Murphy (Dec. 26, 2000), Franklin App. No. 00AP-233. Although designed to address claimed constitutional violations, the post-conviction relief process is a civil collateral attack on a criminal judgment, not an appeal of that judgment. State v. Calhoun (1999), 86 Ohio St. 3d 279, 281; State v. Steffen (1994), 70 Ohio St.3d 399, 410. A petition for post-conviction relief, thus, does not provide a petitioner a second opportunity to litigate his or her conviction, nor is the petitioner automatically entitled to an evidentiary hearing on the petition. State v. Jackson (1980), 64 Ohio St.2d 107, 110. State v. Lewis, Stark App. No. 2007CA00358, 2008-Ohio-3113 at ¶8.

A. Right to Evidentiary Hearing.

{¶14} In determining whether a hearing is required, the Ohio Supreme Court in State v. Jackson (1980), 64 Ohio St.2d 107, stated the pivotal concern is whether there are substantive grounds for relief which would warrant a hearing based upon the petition, the supporting affidavits, and the files and records of the case.

{¶15} As the Supreme Court further explained in Jackson, supra, "[b]road assertions without a further demonstration of prejudice do not warrant a hearing.." Id. at 111. Accordingly, "a trial court properly denies a defendant's petition for post conviction relief without holding an evidentiary hearing where the petition, the supporting affidavits, the documentary evidence, the files, and the records do not demonstrate that petitioner set forth sufficient operative facts to establish substantive grounds for relief." Calhoun, 86 Ohio St.3d at paragraph two of the syllabus; see R.C. 2953.21(C).

{¶16} In State v. Phillips, supra, the court noted that the evidence submitted in support of the petition "`must meet some threshold standard of cogency; otherwise it would be too easy to defeat the holding of [State v. Perry (1967), 10 Ohio St.2d 175] by simply attaching as exhibits evidence which is only marginally significant and does not advance the petitioner's claim beyond mere hypothesis and a desire for further discovery.'" (Citation omitted.) State v. Lawson (1995), 103 Ohio App.3d 307, 315, 659 N.E.2d 362. Thus, the evidence must not be merely cumulative of or alternative to evidence presented at trial. State v. Combs (1994), 100 Ohio App.3d 90, 98, 652 N.E.2d 205.

{¶17} In order for an indigent petitioner to be entitled to an evidentiary hearing in a post conviction relief proceeding on a claim that he was denied effective assistance of counsel, the two-part Strickland v. Washington (1984), 466 U.S. 668 test is to be applied. Hill v. Lockhart (1985), 474 U.S. 52, 58; State v. Lytle (1976), 48 Ohio St. 2d 391; State v. Bradley (1989), 42 Ohio St. 3d 136; State v. Cole, supra, 2 Ohio St. 3d at 114. The petitioner must therefore prove that: 1). counsel's performance fell below an objective standard of reasonable representation; and 2). there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. Id.

{¶18} Furthermore, before a hearing is granted in proceedings for post conviction relief upon a claim of ineffective assistance of trial counsel, the petitioner bears the initial burden to submit evidentiary material containing sufficient operative facts that demonstrate a substantial violation of any of defense counsel's essential duties to his client and prejudice arising from counsel's ineffectiveness. Calhoun, 86 Ohio St.3d at 289, 714 N.E.2d 905; State v. Jackson (1980), 64 Ohio St.2d 107, 413 N.E.2d 819, syllabus; see, also Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, 693; State v. Phillips, supra.

B. Res Judicata.

{¶19} Another proper basis upon which to deny a petition for post conviction relief without holding an evidentiary hearing is res judicata. Lentz, 70 Ohio St.3d at 530; State v. Phillips, supra.

{¶20} Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and...

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