State v. Harry Mitts
| Decision Date | 28 September 2000 |
| Docket Number | 76963,00-LW-4480 |
| Parties | STATE OF OHIO, Plaintiff-Appellee v. HARRY MITTS, Defendant-Appellant CASE |
| Court | United States Court of Appeals (Ohio) |
CIVIL APPEAL FROM THE COMMON PLEAS COURT, CASE NO. CR 313539.
For Plaintiff-Appellee: WILLIAM D. MASON, Cuyahoga County Prosecutor, BY: RENEE L. SNOW (#0068769), Assistant County Prosecutor, The Justice Center, 1200 Ontario Street Cleveland, Ohio 44113.
For Defendant-Appellant: DAVID L. DOUGHTEN (#0002847), JOHN P PARKER (#0068769), 4403 St. Clair Avenue, Cleveland, Ohio 44103.
Petitioner-appellant Harry Mitts ("appellant") appeals from the denial of his petition for post-conviction relief.
Appellant assigns the following errors for review:
IV.
Finding the appeal to lack merit, the judgment of the trial court is affirmed.
On November 4, 1994, a jury convicted appellant of two counts of aggravated murder and two counts of attempted murder. After a mitigation hearing was held, the jury recommended a sentence of death. On November 21, 1994, the trial court sentenced appellant to death on both aggravated murder counts and to two consecutive ten to twenty-five years terms of imprisonment for the attempted murder convictions. This court affirmed appellant's conviction in State v. Mitts (Dec. 19, 1996), Cuyahoga App. No. 68612, unreported. The Supreme Court of Ohio upheld the conviction and sentence in State v. Mitts (1998), 81 Ohio St.3d 223.
On September 25, 1996, appellant filed a petition for post-conviction relief. Appellant raised a claim of ineffective assistance of counsel for failure to request a continuance, properly conduct voir dire, and by insisting on a "blackout defense" although appellant denied he suffered a blackout during the offense. Appellant raised a second claim of ineffective assistance of counsel based upon his attorney's actions during the mitigation phase of his trial. Appellant argued his attorney did not sufficiently conduct premitigation investigation regarding his mother, did not consult a mitigation specialist, failed to properly interview a psychologist, did not request a continuance to prepare for the mitigation phase of the trial, and did not adequately prepare the witnesses who testified for the defense. Appellant stated his attorney did not believe in mitigation except for residual doubt. Appellant averred his counsel did not allow him to testify under oath regarding his background.
Appellant further alleged his attorney did not adequately prepare him for his unsworn statement or consult with appellant about the preparation and presentation of mitigation evidence. Further, appellant averred the attorney refused to discuss the evidence with the psychologist or talk to a mitigation specialist.
On January 31, 1997, appellant filed a motion for appropriation of funds to hire an expert. Appellant wanted to hire a legal expert to assist in the preparation of his post-conviction proceedings. Appellant also asked for funds to appoint Dr. Eisenberg to prepare his defense regarding his claim of ineffective assistance of counsel because a psychologist was not obtained at trial.
On March 25, 1999, appellant filed an amended petition for post-conviction relief. Appellant raised the same claims for relief as in his first petition. Appellant added a claim that his attorney was ineffective for not calling certain character witnesses during mitigation. Appellant asserted his attorney should have used his medical records to reflect he exhibited remorse. Appellant argued his attorney should have hired an alcohol counselor to explain the effects of alcohol on the decision making process.
Appellant added a third ground for relief in which he claimed his sentence was void or voidable because Ohio courts do not engage in an effective proportionality review. Appellant's fourth claim for relief contested the constitutionality of Ohio's postconviction relief proceedings as applied under prevailing case law. A fifth claim for relief contested the sufficiency of the evidence supporting his convictions for aggravated murder because of his intoxicated state. Appellant's sixth claim for relief contended his conviction was void because certain experts were not appointed to assist in his defense.
On August 16, 1999, the trial court denied appellant's petition for post-conviction relief without holding a hearing. The trial court filed findings of fact and conclusions of law. The trial court found appellant's first claim for relief regarding his claim of ineffective assistance of counsel during the guilt phase of his trial to be barred by res judicata. The trial court denied appellant's request for discovery. The trial court also determined appellant did not show the appointment of an investigator or for funding for an expert witness was reasonably necessary.
The trial court denied appellant's second claim for relief regarding ineffective assistance of counsel during the mitigation phase under the doctrine of res judicata. The trial court found the decision to call certain expert witnesses to be within the purview of trial tactics and pointed out that the defense presented four witnesses during this part of the trial. The trial court decided other witnesses appellant argued should have been called would only have provided cumulative information. The trial court also found the third, fourth, fifth, and sixth claims barred by res judicata.
Appellant's first assignment of error challenges the dismissal of his petition for post-conviction relief without the trial court first holding an evidentiary hearing. Appellant contends he supported his petition with sufficient evidence to warrant a hearing.
A post-conviction relief proceeding is a collateral civil attack on a criminal conviction. As such, a defendant's right to post-conviction relief is not a constitutional right but is a right created by statute. Therefore, a petitioner receives no more rights than those granted by the statute. State v. Calhoun (1999), 86 Ohio St.3d 279.
R.C. 2953.21(A) provides:
Any person convicted of a criminal offense or adjudged delinquent claiming that there was such a denial or infringement of his rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, may file a petition at any time in the court which imposed sentence, stating the grounds for relief upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. The petitioner may file such supporting affidavit and other documentary evidence as will support his claim for relief.
A trial court may dismiss a petition for post-conviction relief without first holding an evidentiary hearing. State ex rel. Jackson v. McMonagle (1993), 67 Ohio St.3d 450. The trial court may do so where it determines the petition, supporting affidavits, documentary evidence, files, and the record do not demonstrate the petitioner set forth sufficient operative facts to establish substantive grounds for relief. Calhoun, supra, at paragraph two of the syllabus.
A petition for post-conviction relief will be granted only where the denial or infringement of constitutional rights is so substantial as to render the judgment void or voidable. Relief is not available when the issue has been litigated by appeal or upon a motion for a new trial. State v. Walden (1984), 19 Ohio App.3d 141, 146. The claim must depend on factual allegations which cannot be determined by an examination of the files and records of the case. State v. Milanovich (1975), 42 Ohio St.2d 46, paragraph one of the syllabus. Constitutional issues which could have been raised on appeal but were not will be barred by res judicata. State v. Perry (1967), 10 Ohio St.2d 175.
Appellant inexplicably argues he entered a plea of guilty to aggravated murder. In fact, a jury convicted appellant of two counts of aggravated murder and two counts of attempted murder. Appellant's grasp of the record below seems tenuous at best. Either that, or appellant's attorney needs to exercise more care when pirating from another brief.
In support of his petition, appellant attached what appears to be possible questions and answers for various defense witnesses who were his family members. No context is offered as to when these exhibits were created or by whom. The trial court did not abuse it...
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