State v. Hester

• Citation: 74 O.O.2d 156,45 Ohio St.2d 71,341 N.E.2d 304
• Decision Date: 04 February 1976
• Docket Number: No. 75-63,75-63
• Parties: , 74 O.O.2d 156 The STATE of Ohio, Appellee, v. HESTER, Appellant.
• Court: United States State Supreme Court of Ohio

Page 71

45 Ohio St.2d 71

341 N.E.2d 304, 74 O.O.2d 156

The STATE of Ohio, Appellee, v. HESTER, Appellant.

No. 75-63.

Supreme Court of Ohio.

Feb. 4, 1976.

Syllabus by the Court

1. R.C. 2953.21, as amended by the addition of subsection (C), mandates the trial court to make and file findings of fact and conclusions of law as to the reasons for dismissal of and as to the grounds for relief relied upon a petition for postconviction relief. (State v. Lester, 41 Ohio St.2d 51, 322 N.E.2d 656, approved and followed.)

2. Where the record does not disclose that the issue of competent counsel has been adjudicated, the doctrine of res judicata is an improper basis upon which to dismiss an R.C. 2953.21 petition.

3. The trial record may contain sufficient evidence regarding the issue of competency of counsel raised in an R.C. 2953.21 petition; but, if not, an evidentiary hearing or summary judgment procedure is required to determine this allegation.

4. The test is determining if the accused had effective retained counsel is whether the accused, under all the circumstances, including the fact that he had retained counsel, had a fair trial and substantial justice was done.

Appellant, Richard Earl Hester, was charged and found guilty of armed robbery, after a jury trial. He was sentenced on February 20, 1973. On July 5, 1973, he petitioned the Court of Common Pleas of Guernsey County for postconviction relief on the ground that he had not been advised of his constitutional right to appeal his conviction. Subsequently appellant was resentenced, and he perfected a merit appeal to the Court of Appeals. There was no assignment of error in that appeal alleging incompetency of his retained trial counsel. The judgment of the trial court was affirmed and notice of appeal to this court followed. Appellant asserts he dismissed that appeal for the reason that he learned he could not raise the issue of negligence of his trial counsel for the first time in this court.

On September 4, 1974, appellant filed a second petition for postconviction relief pursuant to R.C. 2953.21 et seq. This petition was based primarily upon the allegations of negligence of trial counsel. The state of Ohio demurred to this petition asserting that all matters set forth therein were res judicata. The demurrer was sustained by the Court of Common Pleas. That court stated in its docket entry that:

'Said demurrer is hereby sustained for the reasons set forth in said demurrer.'

No further reasons were given for the dismissal of appellant's petition. The state's demurrer set forth the following reasons:

'* * * all matters set forth therein (in appellant's petition) are res judicata, in that the judgment of conviction in the trial court and subsequent appeal from said judgment of said conviction to the Court of Appeals under Case No. 479 constitute a final judgment of the matters raised in the defendant's petition and all of which affirmatively appears from the face of the petition as set forth herein.'

Appellant appealed the dismissal of his second petition for postconviction relief to the Court of Appeals. That court affirmed, stating:

'It affirmatively appears from the records that the petitioner previously * * * had a full review on direct appeal of his sentence following conviction and also a full review of his subsequent petition for post-conviction relief. (R.C. 2953.21 et seq.)'

The cause is now before this court pursuant to the allowance of a motion for leave to appeal from that judgment.

James R. Scott and Robert S. Moorehead, Jr., Cambridge, for appellee.

Brownfield, Kosydar, Bowen, Bally & Sturtz and C. William Brownfield, Columbus, for appellant.

POTTER, Judge.

Appellant's proposition of law No. 1 is as follows:

'R.C. 2953.21(C) provides a mandatory requirement that the dismissal of a criminal defendant's petition for postconviction relief be accompanied by findings of fact and conclusions of law with respect to such dismissal, which shall be filed with the record of the case.'

We agree.

With regard to postconviction relief, R.C. 2953.21 provides as follows:

'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 court, and the court reporter's transcript. Such court reporter's transcript if ordered and certified by the court shall be taxed as court costs. If the court dismisses the petition it shall make and file findings of fact and conclusions of law with respect to such dismissal.'

The holding in the recent case of State v. Lester (1975), 41 Ohio St.2d 51, ¹ 322 N.E.2d 656, mandates a finding that appellant's first proposition of law is well taken. The judgment of the Court of Appeals must be reversed and the cause remanded to the Court of Common Pleas so that the court may comply with R.C. 2953.21 et seq., and particularly R.C. 2953.21(C). See, also, state v. Brown (1974), 41 Ohio App.2d 181, 324 N.E.2d 730, in reference to the amendment to R.C. 2953.21 adding subsection (C).

Appellant's proposition of law No. 2 is as follows:

'Where a criminal defendant for the first time raises insufficiency of his trial counsel as a basis for postconviction relief under R.C. 2953.21, the doctrine of res judicata is an improper basis for dismissal of the petition.'

The implied prerequisite to stating a cause of action under R.C. 2953.21 is that petitioner allege grounds to the effect that the judgment is 'void or voidable under the Ohio Constitution or the Constitution of the United States.' For a history of Ohio's Postconviction Remedy Act, see Dayton v. Hill (1970), 21 Ohio St.2d 125, 256 N.E.2d 194; and for a definition of the term 'voidable,' see State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104.

Appellant does not allege that the judgment of the Court of Common Pleas was void but that he was denied rights guaranteed under the Sixth Amendment to the United States Constitution as applied to the states through the Fourteenth Amendment. He asserts he was not given effective assistance of counsel for his defense.

The claim of ineffective counsel is not, ipso facto, barred by the doctrine of res judicata. See Dayton v. Hill, supra, 21 Ohio St.2d at page 125, 256 N.E.2d at page 194, as follows:

'At the outset, it should be noted that the allegation of denial of counsel (and the admission thereof for purposes of the demurrer) removes from these cases the question of res judicata, decided in State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104.'

See, also, State v. Juliano (1970), 24 Ohio St.2d 117, 265 N.E.2d 290; State v. Lester, supra, 41 Ohio St.2d at page 55, 322 N.E.2d 656; and A. B. A. Standards Relating to Post-Conviction Remedies, Section 6.1.

In holding that the doctrine of res judicata does not apply, we note that the record does not disclose that the issue of competent counsel has been adjudicated. The first petition for postconviction relief in essence was a motion for delayed appeal. See State v. Lester, supra, 41 Ohio St.2d at page 53, 322 N.E.2d at page 658, as follows:

'* * * This claim (failure to advise regarding appeal rights) is properly raised by way of motion for leave to appeal in a Court of Appeals (State v. Sims (1971), 27 Ohio St.2d 79, 272 N.E.2d 87), and is not cognizable in an appeal from a denial of postconviction relief.'

The Court of Common Pleas in considering the first postconviction petition and the Court of Appeals on the merit hearing did not, from the errors assigned and from the record determine the issue of lack of competent counsel. State v. Carter (1973), 36 Ohio Misc. 170, 174, 304 N.E.2d 415, 418, contains an analogous fact situation and persuasive reasoning, as follows:

'This decision should not be cited as authority for the proposition that the allegation of the inadequacy of counsel can always be raised in a petition for postconviction relief under Revised Code Section 2953.21 et seq. This decision must be strictly limited to its facts, to-wit: To situations in which the Court of Appeals, on direct appeal of the case, declines to consider the merits of the allegation of inadequacy of counsel for the reason that same had not been raised at any stage of the trial court proceedings. Of course, had the Court of Appeals considered this issue on its merits, and ruled adversely to the defendant, the issue would have been adjudicated against him and such an allegation in a postconviction petition would have been improper since it would have been res judicata pursuant to the State v. Perry decision. * * *' Under the facts of our case the doctrine of res judicata is not applicable.

Appellant's proposition of law No. 3 reads as follows:

'Where a criminal defendant, by way of petition for postconviction relief, alleges that his trial counsel failed generally to engage in pre-trial discovery or investigation; neglected to call an expert witness to present relevant testimony concerning defendant's alcoholism and the 'blackouts' which resulted therefrom; and did not object to unconstitutional one-man 'line-up' procedures employed by the state which reinforced defendant's in-court identification as the individual who robbed the complainant, sufficient grounds are presented to require a hearing under R.C. 2953.21(C).'

We find appellant's third proposition of law well taken. Further, although a record may contain sufficient evidence that counsel has been in fact incompetent (or competent), evidence determinative of this question is usually dehors the record and, generally, an evidentiary hearing or summary judgment procedure is required. See State v. Milanovich (1975), 42 Ohio St.2d 46, 325 N.E.2d 540; State v. Mishelek (1975), 42...