State v. Mark Wayne Wiles, 01-LW-1652

• Decision Date: 27 April 2001
• Docket Number: 99-P-0109,01-LW-1652
• Parties: STATE OF OHIO, Plaintiff-Appellee v. MARK WAYNE WILES, Defendant-Appellant CASE
• Court: Ohio Court of Appeals

STATE OF OHIO, Plaintiff-Appellee v. MARK WAYNE WILES, Defendant-Appellant

No. 99-P-0109

01-LW-1652 (11th)

Court of Appeals of Ohio, Eleventh District, Portage County.

April 27, 2001

Civil Appeal from the Court of Common Pleas Case No. 85 CR 0098

HON WILLIAM M. O' NEILL, P.J., HON. JUDITH A. CHRISTLEY, J HON. ROBERT A. NADER, J.

BETTY D. MONTGOMERY, ATTORNEY GENERAL, State Office Tower, 16th Floor, 30 East Broad Street, Columbus, OH 43215-3428

MICHAEL L. COLLYER, ASSISTANT ATTORNEY GENERAL, State Office Building, 11th Floor, 615 West Superior Avenue, Cleveland, OH 44113-1899 (For Plaintiff-Appellee)

DAVID H. BODIKER, OHIO PUBLIC DEFENDER, WILLIAM S. LAZAROW LAURENCE E. KOMP, ASSISTANT PUBLIC DEFENDERS, 8 East Long Street, 11t h Floor, Columbus, OH 43215-2998 (For Defendant-Appellant)

OPINION

NADER J.

Appellant, Mark Wayne Wiles, was convicted of felony murder by a three-judge panel in the Portage County Court of Common Pleas and subsequently sentenced to death. His conviction and sentence have been affirmed on appeal. State v. Wiles (June 3, 1988), Portage App. No 1675, unreported, State v. Wiles (1991), 59 Ohio St.3d 71, 571 N.E.2d 97, cert. denied by Wiles v. Ohio (1992), 506 U.S. 832, 113 S.Ct. 99, 121 L.E.2d 59.

On September 20, 1996, appellant filed a petition for post-conviction relief pursuant to R.C. §2953.21, setting forth twenty-two claims of violations of his constitutional rights during trial and on appeal. Eighty-one days later, on December 10, 1996, the state filed a motion captioned 'Motion for Ruling Under R.C. §2953.21(C) and/or Motion for Summary Judgment Under R.C. §2953.21(D).' On January 13, 1997, appellant filed a motion to strike the state's motion on the grounds that it was not filed within the time requirement set forth in R.C. §2953.21(D). On February 18, 1997, the trial court, without an evidentiary hearing, summarily dismissed appellant's petition.

Upon appellant's timely appeal, we reversed and remanded; and ordered the trial court to enter a supplemental judgment containing individualized findings of fact and law as to each of appellant's claims indicating the portions of the record which establish res judicata. State v. Wiles, 126 Ohio App.3d 71, 84-85, 709 N.E.2d 898.

On April 21, 1999, the trial court dismissed appellant's post-conviction petition and entered supplemental findings of fact and conclusions of law as to each of the appellant's claims. From this judgment, appellant filed a timely notice of appeal setting forth the following assignments of error:

"(1) The trial court erred in considering the state's untimely summary judgment motion without giving appellant an opportunity to respond.

"(2) The trial court's findings of fact and conclusions of law improperly rely on res judicata and are insufficient as a matter of law as previously held by this court in this case.

"(3) The trial court erred in considering the summary judgment motion of a conflicted party and denying appellant's request for an in camera inspection of the conflicted prosecutor's file before it was transferred to the special prosecutor.

"(4) The trial court erred when it denied appellant an evidentiary hearing and discovery on his petition for post-conviction relief, thus violating his rights under the fifth, sixth, eighth, ninth, and fourteenth amendment of the United States constitution and Article I, Section 1, 2, 9, 10, 16, and 20 of the Ohio Constitution.

"(5) The trial court erred in granting the state's summary judgment motion.

"(6) The trial court erred in denying the merits of appellant's post-conviction petition.

"(7) Ohio's post-conviction process is not an adequate corrective process.

"(8) The cumulative error of appellant's substantive claims merit reversal and remand for proper post-conviction process."

In his first assignment of error, appellant argues that the trial court incorrectly relied on the state's untimely motion without providing him an opportunity to respond. Review of the record reveals many similarities between the trial court's October 21, 1999 judgment and the state's untimely motions; however, the majority of these similarities are merely statements of appellant's claims for relief. The state's motions did not contain facts outside the record.

While the trial court may have had the benefit of the state's argument, we have no doubt that the state's input was not outcome determinative. State v. McCabe (Sept. 14 1998), Washington App. No. 97-CA32, unreported. Appellant's first assignment of error is without merit.

In appellant's second assignment of error, he argues that the trial court improperly relied on res judicata. "Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or an appeal from that judgment." State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104, paragraph nine of the syllabus. We address the issue of res judicata in our analysis of each of appellant's twenty claims for relief infra. Appellant's second assignment of error is without merit for reasons hereinafter set forth.

In his third assignment of error, appellant argues that the trial court erred in denying his request for an in camera inspection of the prosecutor's file before it was transferred to the special prosecutor. Upon Prosecutor Vigluicci's assurances that "there are no memorandums, but if you want to review the file in camera, I have no problem with that[,]" the judge denied appellant's request for an in camera inspection.

James Aylward's ("Aylward")^[1] employment with the prosecutor's office, while appellant's appeal was in the Supreme Court, created a presumption that he shared information that could have been used against appellant in the post-conviction relief proceedings. Wiles, 59 Ohio St.3d 71 at 83. However, the special prosecutor was appointed at the stage in the process when the parties were awaiting the trial court's determination of whether the petition, filed in 1996, presented substantive grounds for relief. The record is silent as to any indication that the special prosecutor received or used any improperly shared information. The special prosecutor did not file any motions in the trial court and appellate briefing is limited to the record.

We are not persuaded that any harm resulted from the special prosecutor receiving the prosecutor's file without an in camera inspection at the post-conviction stage; the trial court's error in not conducting an in camera review of the file prior to transfer was harmless. Appellant's third assignment of error is without merit.

In appellant's fourth assignment of error, he argues that the trial court erred in denying discovery. Discovery in post-conviction claims is within the discretion of the trial court. State v. Sherills (Jan. 16, 1992), Cuyahoga App.No. 61882, unreported. When a petition for post-conviction relief is properly dismissed without hearing, the issue of discovery is moot. Id. Appellant did not demonstrate grounds for relief. Because he did not, the trial court's denial of discovery in the instant case was not an abuse of discretion; appellant's fourth assignment of error is without merit.

In appellant's fifth assignment of error, he argues that the trial court erred in granting the state's motion for summary judgment. There is no evidence to support appellant's contention that the trial court granted summary judgment; the record reveals that the court sua sponte analyzed the petition and determined that it lacked substantive grounds for relief.

"It is well settled that, regardless of whether or not the state responds to a petition for post-conviction relief, R.C. 2953.21(C) requires the court to sua sponte analyze the petition." Wiles, 126 Ohio App.3d at 78. "Under R.C. 2953.21(C), the court is required to review the petition, supporting materials, if any, and the files and records of the cause in order to determine if there are 'substantive grounds for relief.' If there are such grounds, the court should proceed to a hearing on the petition under R.C. 2953.21(E). However, an evidentiary hearing is not automatically required." State v Clark, (Apr. 17, 1998), Portage App.Nos. 96-P-0257, 96-P-0258, unreported; citing State ex rel. Giles v. Portage County Court of Common Pleas (Feb. 4, 1994), Portage App. No. 93-P-0109, unreported. "If the petition, supporting materials, if any, and/or the files and records of the cause do not state substantive grounds for relief, the court may summarily dismiss the petition." Id., citing State v. Perry, (Dec. 5, 1997), Trumbull App. No. 96-T-5597, unreported; State v. Hill (June 16, 1995), Trumbull App. No. 94-T-5116, unreported.

We find that the trial court, after its R.C. 2953.21(C) review, dismissed appellant's post-conviction petition because it lacked substantive grounds, not because there were no genuine issues as to a material fact so that the moving party was entitled to judgment as a matter of law, as set forth in Ohio Civ.R. 56(C). Appellant's fifth assignment of error is without merit.

In his sixth assignment of error, appellant contends that the court's determination that each of his twenty-two claims for relief lacked merit was improper. In his first claim for relief, appellant argues that electrocution is cruel and unusual punishment. Appellant raised the issue of cruel and unusual punishment on his direct appeal. State v Wiles (1991), 59 Ohio St.3d 71, 93, This claim is now barred by res judicata. Additionally, the Supreme Court of...