State v. Jackson

• Decision Date: 17 December 1980
• Docket Number: No. 79-1603,79-1603
• Citation: 64 Ohio St.2d 107,18 O.O.3d 348,413 N.E.2d 819
• Parties: , 18 O.O.3d 348 The STATE of Ohio, Appellant, v. JACKSON, Appellee.
• Court: Ohio Supreme Court

Page 107

64 Ohio St.2d 107

413 N.E.2d 819, 18 O.O.3d 348

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

No. 79-1603.

Supreme Court of Ohio.

Dec. 17, 1980.

Syllabus by the Court

In a petition for post-conviction relief, which asserts ineffective assistance of counsel, the petitioner bears the initial burden to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and that the defense was prejudiced by counsel's ineffectiveness.

Ricky Jackson, appellee herein, was indicted for aggravated murder with specifications, aggravated robbery and attempted aggravated murder in violation of R.C. 2903.01, 2911.01 and 2923.02, respectively.

On June 16, 1975, attorneys John Butler and Joel Garver were assigned to represent appellee. It is undisputed that Butler was to act as main trial counsel with Garver as backup counsel.

On June 23, 1975, the court authorized the appointment of an investigator on behalf of appellee. This investigator, Leonard D. Fisher, canvassed the neighborhood, talked to relatives and other possible witnesses and photographed the scene in question. On July 11, 1975, Fisher interviewed appellant's key and sole eyewitness and obtained a written seven-page signed statement concerning the incident herein.

Approximately one week prior to trial, Butler was granted leave to withdraw as trial counsel. On July 24, 1975, the trial court appointed Robert Loeb as main trial counsel in Butler's stead. Garver continued as backup counsel to Loeb.

Trial began on July 29, 1975, with jury selection taking three days to complete. On August 1, 1975, the state of Ohio (hereinafter appellant) called its first three witnesses to testify on behalf of the prosecution. On that same day, the trial judge stayed the proceedings for personal reasons until August 6, 1975. Trial resumed August 6, and appellant rested its case on August 8.

Following the trial to a jury, appellee was found guilty as charged in the indictment. Appellee timely filed an appeal to the Court of Appeals. On May 26, 1977, that court affirmed the judgment of the trial court, as modified.

Appellee raised the issue of ineffective assistance of counsel on direct appeal, but the Court of Appeals declined to consider the merits of the allegation for the reason that the issue had not been raised during any stage of the trial.

Appellee also assigned as error that he had an unfair trial, in that, during his trial, the jury read newspaper articles announcing the conviction of a codefendant. The Court of Appeals determined this assignment of error to be without merit.

On May 24, 1977, appellee filed what was in effect a petition for post-conviction relief in accordance with R.C. 2953.21. Appellee again asserted that he had received an unfair trial due to the jury's reading of a newspaper article concerning the conviction of a codefendant.

Appellee subsequently amended his petition to assert a denial of his constitutional right to effective assistance of counsel. In support of this contention, an affidavit of appellee's trial counsel was attached to the petition, wherein trial counsel stated, in essence, that he had insufficient time to adequately prepare for trial. The trial court subsequently filed its findings of fact and conclusions of law and denied the petition without conducting an evidentiary hearing. Following the dismissal of his post-conviction petition, appellee timely filed an appeal to the Court of Appeals.

That court determined the assignment of error concerning the jury's knowledge of the codefendant's conviction to be res judicata. However, the appellate court found error in the trial court's dismissal of the post-conviction petition. In essence, the appellate court found error in the trial court's dismissal of the petition without an evidentiary hearing on the allegation of ineffective counsel.

The Court of Appeals reversed the judgment of the trial court and remanded the cause for further proceedings in accordance with its opinion.

The cause is now before this court pursuant to the allowance of the state's motion for leave to appeal.

John T. Corrigan, Pros. Atty., Dominic J. DelBalso, Asst. Pros. Atty., and Eloise Gries Cookson, Cleveland, for appellant.

Paul W. Dixon and Catherine L. Worley, Columbus, for appellee.

LOCHER, Justice.

The sole issue of law presented herein is whether the trial court properly dismissed the appellee's petition for post-conviction relief on the allegation of ineffective assistance of counsel without conducting an evidentiary hearing.

The statutory framework for determining whether a hearing is necessary for post-conviction actions is set forth in R.C. 2953.21. In pertinent part, R.C. 2953.21 reads as follows:

"(A) * * * The petitioner may file such supporting affidavit and other documentary evidence as will support his claim for relief.

"* * *

"(C) 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. * * * If the court dismisses the petition it shall make and file findings of fact and conclusions of law with respect to such dismissal. (Emphasis added.)

"(D) Within ten days after the docketing of the petition, or within such further time as the court may fix for good cause shown, the prosecuting attorney shall respond by demurrer, answer, or motion. Within twenty days from the date the issues are made up either party may move for summary judgment * * *. The right to such judgment must appear on the face of the record.

"(E) Unless the petition and the files and records of the case show the petitioner is not entitled to relief, the court shall proceed to a prompt hearing on the issues, hold the hearing, and make and file written findings of fact and conclusions of law upon entering judgment thereon."

A perusal of the above-cited provisions clearly indicates this statute does not expressly mandate a hearing for every post-conviction relief petition and, therefore, a hearing is not automatically required.

This court, in State v. Lester (1975), 41 Ohio St.2d 51, 322 N.E.2d 656, interpreted R.C. 2953.21 and the necessity for a hearing. Paragraph two of the syllabus in that case reads as follows:

"R.C. 2953.21 requires the trial court to consider the allegations of the petition for postconviction relief and the particular facts upon which the petitioner bases his claim; if, upon such consideration, the trial court finds no grounds for a hearing, the court is required to make and file findings of fact and conclusions of law as to the reasons for dismissal and as to the grounds for relief relied upon in the petition."

Thus, the pivotal concern is whether there are substantive grounds for relief which would warrant a hearing based upon the petition, the supporting affidavit and the files and records of this cause.

To determine the substantive grounds of this petition, the trial court was presented an affidavit from the trial attorney, Loeb. In essence, Loeb's affidavit claims that he had insufficient time to provide the appellee effective counsel.

The test as to whether an individual has been denied effective counsel was initially set forth by this court in State v. Hester (1976), 45 Ohio St.2d 71, 341 N.E.2d 304, and thereafter slightly revised in State v. Lytle (1976), 48 Ohio St.2d 391, 358 N.E.2d 623.

In State v. Hester, supra, at page 79, 341 N.E.2d 304, this court held "the test to be whether the accused, under all the circumstances, * * * had a fair trial and substantial justice was done."

In State v. Lytle, supra, this court stated, at pages 396-397, 358 N.E.2d 623:

"When considering an allegation of ineffective assistance of counsel, a two-step process is usually employed. First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness.

"On the issue of counsel's effectiveness, the appellant has the burden of proof, since in Ohio a properly licensed attorney is presumably competent. See Vaughn v. Maxwell (1965), 2 Ohio St.2d 299, 209 N.E.2d 164; State v. Williams (1969), 19 Ohio App.2d 234, 250 N.E.2d 907.

" * * * The weight of authority places the initial burden upon the appellant since '(u)nlike a constitutional violation actually caused by the state, such as an illegal search and seizure or a coerced confession, ineffective assistance of counsel is a result of the volitional acts of one charged with representing the defendant. To impose automatically the initial burden of proof on the state * * * would penalize the prosecution for acts over which it can have no control.' McQueen v. Swenson (C.A. 8, 1974), 498 F.2d 207, 218."

Before a hearing is granted, the petitioner bears the initial burden in a post-conviction proceeding to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and also that the defense was prejudiced by counsel's ineffectiveness.

Broad assertions without a further demonstration of prejudice do not warrant a hearing for all post-conviction petitions. General conclusory allegations to the effect that a defendant has been denied effective assistance of counsel are inadequate as a matter of law to impose an evidentiary hearing. See Rivera v. United States (C.A. 9, 1963), 318 F.2d 606.

The Court of Appeals cited State v. Milanovich (1975), 42 Ohio St.2d...