State v. Fry, 032019 OHCA9, 28907

Docket Nº:28907
Opinion Judge:THOMAS A. TEODOSIO JUDGE.
Party Name:STATE OF OHIO Appellee v. CLARENCE FRY Appellant
Attorney:RICHARD A. CLINE, Chief Counsel, KIMBERLY S. RIGBY, Supervising Attorney, and ADRIENNE M. LARIMER, Assistant Public Defender, for Appellant. SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellee.
Judge Panel:SCHAFER, P.J. CONCURS. CARR, J. CONCURRING IN JUDGMENT ONLY.
Case Date:March 20, 2019
Court:Court of Appeals of Ohio
 
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2019-Ohio-958

STATE OF OHIO Appellee

v.

CLARENCE FRY Appellant

No. 28907

Court of Appeals of Ohio, Ninth District, Summit

March 20, 2019

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 05 08 3007

RICHARD A. CLINE, Chief Counsel, KIMBERLY S. RIGBY, Supervising Attorney, and ADRIENNE M. LARIMER, Assistant Public Defender, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellee.

DECISION AND JOURNAL ENTRY

THOMAS A. TEODOSIO JUDGE.

{¶1} Appellant, Clarence Fry, appeals from an order denying his petition for postconviction relief in the Summit County Court of Common Pleas. This Court affirms.

I.

{¶2} Mr. Fry admittedly stabbed his girlfriend four times, which resulted in her death. Following a jury trial, he was convicted of aggravated murder with two death specifications, aggravated murder, murder, and other felonies. The Supreme Court of Ohio affirmed his convictions and death sentence, but remanded the matter for the imposition of post-release control on several of the felonies. State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, ¶ 6.

{¶3} Mr. Fry also filed a petition for post-conviction relief in the trial court, which was denied. On appeal, this Court affirmed the trial court's judgment in part, but reversed in part, concluding that the court erred in finding Mr. Fry's twelfth ground for relief-i.e., his claim that he was denied his right to testify-was barred by the doctrine of res judicata. State v. Fry, 9th Dist. Summit No. 26121, 2012-Ohio-2602, ¶ 38-39, 50. Although Mr. Fry had previously raised this issue in his direct appeal and the Supreme Court stated, "[n]othing in the record suggests that [Mr.] Fry wished to testify but was denied the opportunity to do so[, ]" he now supported the claim in his petition with evidence dehors the record, specifically hand-written notes taken by his attorney. Id. at ¶ 38. This Court remanded the matter back to the trial court to consider the evidence presented as it relates to this claim. Id. at ¶ 39. Upon remand, the trial court held hearings on the matter on July 14, 2016, and December 7, 2016, and ultimately issued an order denying Mr. Fry's twelfth ground for relief.

{¶4} Mr. Fry now appeals from the order denying his petition for post-conviction relief and raises two assignments of error for this Court's review.

II.

ASSIGNMENT OF ERROR ONE

APPELLANT FRY PROVED THAT HIS TRIAL COUNSEL UNCONSTITUTIONALLY DEPRIVED HIM OF THE RIGHT TO TESTIFY IN HIS OWN DEFENSE. ACCORDINGLY, THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT DENIED FRY RELIEF ON HIS TWELFTH GROUND FOR RELIEF IN HIS POST-CONVICTION PETITION.

{¶5} In his first assignment of error, Mr. Fry argues that his trial counsel deprived him of his right to testify at trial and, therefore, the trial court erred, abused its discretion, and was biased against him in denying his twelfth ground for relief in his petition for post-conviction relief. We disagree.

{¶6} R.C. 2953.21(A)(1)(a) permits anyone convicted of a criminal offense "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" to file a petition for post-conviction relief, "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." "The petitioner may file a supporting affidavit and other documentary evidence in support of the claim for relief." R.C. 2953.21(A)(1)(a).

{¶7} This Court generally reviews a trial court's denial of a petition for post-conviction relief for an abuse of discretion. State v. Childs, 9th Dist. Summit No. 25448, 2011-Ohio-913, ¶ 9. An abuse of discretion "implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying an abuse of discretion standard, a reviewing court is precluded from simply substituting its own judgment for that of the trial court. Pons v. Ohio State Med. Bd, 66 Ohio St.3d 619, 621 (1993).

{¶8} In Mr. Fry's twelfth ground for relief, he argued that his "convictions and death sentence are void or voidable because he was not allowed to testify at his capital trial." He claimed his counsel knew that he wanted to testify, but did not want him to testify, so they impermissibly waived that right on his behalf, in violation of his constitutional rights. Mr. Fry's other argument under this ground for relief-i.e., that the trial court erred in failing to inquire of him as to whether he was knowingly, intelligently, and voluntarily waiving his right to testify- has already been rejected by the Supreme Court of Ohio on appeal and will not be addressed further, as the Supreme Court's decision on that issue is the law of the case. See Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, at ¶ 119-120, citing State v. Bey, 85 Ohio St.3d 487, 499 (1999) ("[A] trial court is not required to conduct an inquiry with the defendant concerning the decision whether to testify in his defense." (Emphasis sic.)). See also State v. Stekelenburg, 9th Dist. Summit No. 24825, 2010-Ohio-219, ¶ 5, quoting Nolan v. Nolan, 11 Ohio St.3d 1, 3 (1984) (The doctrine of law of the case "'provides that the decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels.'").

{¶9} Upon remand from this Court, the trial court held two hearings to address Mr. Fry's claim that he was denied his right to testify at trial by his counsel. At the first hearing, the court heard testimony from Mr. Fry as well as his two trial attorneys, Lawrence Whitney and Kerry O'Brien. At the second hearing, the court heard testimony from private investigator Thomas Fields as well as Mr. Fry's sister and brother. The trial court reviewed all of the evidence and ultimately found no merit in Mr. Fry's twelfth ground for relief.

{¶10} The trial court found the testimony of Mr. Whitney and Mr. O'Brien to be "extremely credible[, ]" but found Mr. Fry's testimony to be "totally devoid of credibility and completely self-serving." The court determined that Mr. Whitney's testimony was consistent with Mr. Fry's demeanor and disinterest toward the end of the trial proceedings and into the mitigation phase. The court further determined that Mr. O'Brien's testimony contradicted Mr. Fry's testimony, establishing that counsel met with Mr. Fry periodically and was certain that Mr. Fry had decided to not testify on June 11, 2006, the day before the defense rested its case. As the trial court judge presiding over the evidentiary hearings was in the unique position of having also presided over the trial in this matter, she recalled in her order several instances of Mr. Fry being strong-willed and outspoken during the trial, which she noted belied his claim that he suddenly "choked" at trial or was somehow incapable of informing the court of his desire to testify: e.g., chuckling during the victim's six-year-old grandson's testimony about witnessing Mr. Fry enter the home with a knife and stab his grandmother; eating candy during the proceedings; admitting to making a threatening gesture to someone in the back of the courtroom; and being so vocally disruptive during sentencing that he had to be physically removed from the courtroom by the Sheriffs deputies. The court further found the testimony of Mr...

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