State v. Johnson, 2007 Ohio 1685 (Ohio App. 4/10/2007)

• Decision Date: 10 April 2007
• Docket Number: No. 2006-CA-04.,2006-CA-04.
• Citation: 2007 Ohio 1685
• Parties: State of Ohio, Plaintiff-Appellee, v. Marvin Johnson, Defendant-Appellant.
• Court: Ohio Court of Appeals

Page 1

2007 Ohio 1685

State of Ohio, Plaintiff-Appellee, v. Marvin Johnson, Defendant-Appellant.

No. 2006-CA-04.

Court of Appeals of Ohio, Fifth District, Guernsey County.

Date of Judgment Entry: April 10, 2007.

Civil appeal from the Guernsey County Court of Common Pleas, Case No. 03-CR1-16.

Affirmed.

Daniel G. Padden, Prosecuting Attorney, 139 West 8th St., Box 640, Cambridge, OH 43725, for Plaintiff-Appellee.

David Bodiker, Kimberly S. Rigby, Pamela Prude-Smithers, 8 East Long Street — 11th Floor, Columbus, OH 43215, for Defendant-Appellant.

Before: Hon: W. Scott Gwin, P.J., Hon: William B. Hoffman, J., Hon: John W. Wise, J.

OPINION

GWIN, P.J.

{¶1} Defendant-appellant Marvin Johnson appeals from the December 19, 2005 and January 6, 2006, Judgment Entries of the Guernsey County Court of Common Pleas overruling his Petition for Post Conviction Relief and Motion for Competency Evaluation.

{¶2} The underlying criminal case against appellant arises from the aggravated murder of 13-year-old Daniel Bailey and the rape and aggravated robbery of Tina Bailey, Daniel's mother.

{¶3} The Guernsey County Grand Jury indicted Johnson on two counts of aggravated murder: Count 1, pursuant to the felony-murder provision in R.C. 2903.01(B), and Count 2, pursuant to the "prior calculation and design" provision in R.C. 2903.01(A). Each aggravated-murder count carried a death-penalty specification charging Johnson as the principal offender in a felony murder, pursuant to R.C. 2929.04(A) (7). The indictment also contained counts for kidnapping, rape, and aggravated robbery. The jury convicted him of all counts and all specifications, and, following the jury's recommendation, the trial judge sentenced him to death. For a complete statement of the underlying facts see State v. Johnson (2006), 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144.

{¶4} On July 20, 2005, appellant filed a post-conviction petition in the Common Pleas Court of Guernsey County. On that same day, appellant filed a motion in the Supreme Court of Ohio to disqualify Judge Ellwood from this case. That motion was denied on July 27, 2005. Appellant amended his post-conviction petition on July 29, 2005, August 2, 2005, August 5, 2005, and August 23, 2005.

{¶5} Appellant filed a motion for appropriation of funds for a PET scan on August 24, 2005. On August 29, 2005, appellant filed a motion for leave of court to conduct discovery. On October 19, 2005, appellant filed a motion for an order to the warden of Mansfield Correctional Institute to allow for neuropsychological testing of the appellant. On December 14, 2005, appellant filed a motion for leave to file a motion for competency determination and to stay trial proceedings.

{¶6} By Judgment Entry filed December 19, 2005, the trial court denied appellant's petition for post-conviction relief, motion to conduct discovery, and appellant's request for an evidentiary hearing.

{¶7} On December 20, 2005, the Court denied appellant's motion for neuropsychological testing and appellant's motion for funds for a PET scan.

{¶8} On January 6, 2006, the Court denied Appellant's motion for competency determination.

{¶9} Appellant timely appealed and raises the following four assignment of error for our consideration:

{¶10} "I. THE TRIAL COURT ERRED BY DENYING APPELLANT'S MOTION FOR A COMPETENCY DETERMINATION WHEN HE PRESENTED SUFFICIENT OPERATIVE FACTS TO MERIT AN EVIDENTIARY HEARING TO DETERMINE HIS COMPETENCY.

{¶11} "II. THE TRIAL COURT ERRED BY APPLYING THE DOCTRINE OF RES JUDICATA TO BAR APPELLANT'S FIRST, THIRD, FOURTH, SIXTEENTH, SEVENTEENTH, AND EIGHTEENTH GROUNDS FOR RELIEF.

{¶12} "III. THE TRIAL COURT ERRED IN DISMISSING APPELLANT'S POSTC-ONVICTION PETITION WHEN HE PRESENTED SUFFICIENT OPERATIVE FACTS TO MERIT RELIEF OR, AT MINIMUM, AN EVIDENTIARY HEARING.

{¶13} "IV. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S POST-CONVICTION PETITION WITHOUT FIRST AFFORDING HIM THE OPPORTUNITY TO CONDUCT DISCOVERY."

Standard of Review

{¶14} 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".

{¶15} 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, 9^th 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.

{¶16} 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.

{¶17} 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.

{¶18} 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.

{¶19} 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).

{¶20} 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.

{¶21} "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 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 testimony in an affidavit to be contradicted by evidence in the record by the same witness, or to be internally inconsistent, thereby weakening the credibility of that testimony.' Calhoun, 86 Ohio St.3d at 285, 714 N.E.2d at 911-912, citing Moore, 99 Ohio App.3d at 754-756, 651 N.E.2d at 1323-1324." State v. Kinley (1999), 136 Ohio App.3d 1, 13-14, 735 N.E.2d 921, 930-31.

{¶22} A trial court that discounts the credibility of sworn affidavits must include an explanation of its basis for doing so in its findings of fact and conclusions of law in order that meaningful appellate review may occur. Id., at 285, 714 N.E.2d at 911-912.

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