State v. Elmore, 2005 Ohio 5940 (OH 11/3/2005), Case No. 2005-CA-32.

CourtUnited States State Supreme Court of Ohio
Writing for the CourtGwin
Citation2005 Ohio 5940
Decision Date03 November 2005
Docket NumberCase No. 2005-CA-32.
PartiesState of Ohio Plaintiff-Appellee v. Phillip L. Elmore Defendant-Appellant.

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2005 Ohio 5940
State of Ohio Plaintiff-Appellee
Phillip L. Elmore Defendant-Appellant.
Case No. 2005-CA-32.
Court of Appeals of Ohio, Fifth District, Licking County.
Date of Judgment Entry: November 3, 2005.

Criminal appeal from the Licking County, Court of Common Pleas, Case No. 02CR275


Robert Becker, Kenneth Oswalt, 20 South Second Street, Newark, OH 43055, for Plaintiff-Appellee

David H. Bodiker, Richard J. Bickers, Kathryn L. Sandford, 8 East Long Street, 11th Floor, Columbus, OH 43215, for Defendant-Appellant.

Hon: John F. Boggins, P.J., Hon: W. Scott Gwin, J., Hon: Julie A. Edwards, J.


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{¶1} Defendant-appellant Phillip L. Elmore appeals from the November 9, 2004 and February 18, 2005, Judgment Entries of the Licking County Court of Common Pleas overruling his Petition for Post Conviction Relief and granting the plaintiff-appellee State of Ohio's motion for summary judgment.


{¶2} In June, 2002, a Licking County Grand Jury returned a six-count indictment against appellant charging him with aggravated murder, murder, kidnapping, aggravated robbery, aggravated burglary and grand theft.

{¶3} The aggravated murder count in the indictment contained four separate death penalty specifications enumerated in R.C. 2929.04(A)(3) and 2929.04 (A)(7).

{¶4} The trial of this case arose from the tragic death of Pamela S. Annarino, whose body was found on June 4, 2002, in the upstairs bathroom of her home located at 32 West Postal Avenue. The body was found by two men, Clifton Rodeniser, the victim's brother-in-law, and close friend Timothy Grooms. According to the Coroner, the victim died of "multiple blunt force injuries to the head with incomplete ligature strangulation." (5T at 845-847). Ms. Annarino and appellant had previously had a romantic relationship.

{¶5} A jury trial was held in which the State introduced substantial evidence against appellant including several statements made to law enforcement officials which implicated him in Pamela Annarino's death. After the State rested, the defense likewise rested without calling any witnesses.

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{¶6} The jury returned verdicts of guilty of all counts as well as all four capital specifications. The case then proceeded to the penalty phase. Appellant made an unsworn statement. Thereafter the defense called its only witness, Dr. Jeffrey Smalldon, a clinical psychologist. The defense then rested. The State presented no rebuttal evidence. The jury returned a verdict recommending that appellant be sentenced to death. The trial court accepted the jury's recommendation and sentenced appellant to death. Appellant appealed his conviction and sentences to the Ohio Supreme Court. (See State v. Elmore 103 Ohio St. 3d 1423, 814 N.E. 2d 488, 2004-Ohio-4524). Neither party has sought a stay of the direct appeal in the Ohio Supreme Court or in the appeal from the denial of the petition for post conviction relief in this court. (See, e.g. State v. Glenn (1987), 33 Ohio St.3d 601, 514 N.E.2d 869).

{¶7} Appellant filed his petition for post-conviction relief on August 26, 2004. The petition raised seventeen grounds for relief supported by 50 exhibits numbering 673 pages in length. On September 30, 2004, appellant amended his petition for post-conviction relief by adding two additional grounds for relief and two additional exhibits. On that same date, appellant filed his first motion for leave of court to conduct discovery.

{¶8} On October 11, 2004, the appellee filed its motion for summary judgment. On October 12, 2004, appellant moved the trial court for appointment of an expert on substance dependence and an expert in mental retardation. The trial court denied both of these motions on November 11, 2004.

{¶9} On October 25, 2004 the appellant filed his memoranda contra to appellee's motion for summary judgment which was supported by three exhibits. On

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November 9, 2004 the trial court granted the appellee's motion for summary judgment. On February 18, 2005, the trial court entered Findings of Fact and Conclusions of Law. Appellant timely appealed and raises the following assignment of error for our consideration:


Standard of Review

{¶11} 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".

{¶12} A post conviction proceeding is a collateral civil attack on a criminal conviction. State v. Calhoun (1999), 86 Ohio St.3d 279, 281, 714 N.E.2d 905; State v. Phillips, 9th Dist. No. 20692, 2002-Ohio-823. In order to obtain post conviction relief, a petitioner must show 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 [.]" R.C. 2953.21; State v. Watson (1998), 126 Ohio App.3d 316, 323, 710 N.E.2d 340.

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{¶13} Under R.C. 2953.21, a petitioner seeking post conviction relief is not automatically entitled to an evidentiary hearing. Calhoun, 86 Ohio St.3d at 282, 714 N.E.2d 905. Significantly, the Ohio Supreme Court has held that the proper basis for dismissing a petition for post conviction relief without holding an evidentiary hearing include: 1) the failure of the petitioner to set forth sufficient operative facts to establish substantive grounds for relief, and 2) the operation of res judicata to bar the constitutional claims raised in the petition. Calhoun, 86 Ohio St.3d at paragraph two of the syllabus; State v. Lentz (1994), 70 Ohio St.3d 527, 530, 639 N.E.2d 784.

{¶14} 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 is to be applied. Hill v. Lockhart (1985), 474 U.S. 52, 58; State v. Lylte (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.

{¶15} R.C. 2953.21 does not expressly mandate a hearing for every post-conviction relief petition; therefore, a hearing is not automatically required. 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.

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{¶16} As the Supreme Court further explained in Jackson, supra, "[b]road assertions without a further demonstration of prejudice do not warrant a hearing for all post-conviction relief petitions." Id. at 111. Rather, a petitioner must submit evidentiary documents containing sufficient operative facts to support his claim before an evidentiary hearing will be granted. 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).

{¶17} 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.

{¶18} "In determining how to assess the credibility of supporting affidavits in post conviction relief proceedings, the Supreme Court adopted the reasoning of the First Appellate District in State v. Moore (1994), 99 Ohio App.3d 748, 651 N.E.2d 1319, which had looked to federal habeas corpus decisions for guidance. Id. at 753-754, 651 N.E.2d at 1322-1323. The Supreme Court ultimately determined that the trial court

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should consider all relevant factors in assessing the credibility of affidavit testimony in `so-called paper hearings,' including the following: `(1) whether the judge viewing the post conviction relief petition also presided at the trial, (2) whether multiple affidavits contain nearly identical language, or otherwise appear to have been drafted by the same person, (3) whether the affidavits contain or rely on hearsay, (4) whether the affiants are relatives of the petitioner, or otherwise interested in the success of the petitioner's efforts, and (5) whether the affidavits contradict evidence proffered by the defense at trial. Moreover, a trial court may find sworn...

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