State v. Maxwell D. White

• Decision Date: 07 August 1998
• Docket Number: 98-LW-4186,97COA01229
• Parties: STATE OF OHIO, Plaintiff-Appellee v. MAXWELL D. WHITE, JR., Defendant-Appellant Case
• Court: Ohio Court of Appeals

STATE OF OHIO, Plaintiff-Appellee v. MAXWELL D. WHITE, JR., Defendant-Appellant

No. 97COA01229

98-LW-4186 (5th)

Court of Appeals of Ohio, Fifth District Ashland

August 7, 1998

Civil Appeal from the Court of Common Pleas, Case No. 96CRI07366

Hon Sheila G. Farmer, P. J., Hon. W. Scott Gwin, J., Hon. John W Wise, J.

For Plaintiff-Appellee: ROBERT DESANTO, ASHLAND COUNTY PROSECUTING, ATTORNEY, RAMONA FRANCESCONI ROGERS, ASSISTANT PROSECUTING ATTORNEY, Orange Tree Square - Suite 307 Ashland, Ohio 44805

For Defendant-Appellant: DAVID H. BODIKER, STATE PUBLIC DEFENDER, LORI ANN MCGINNIS, CYNTHIA A. YOST, ASSISTANT PUBLIC DEFENDER, OFFICE OF THE OHIO PUBLIC DEFENDER, 8 East Long Street, 11th Floor, Columbus, Ohio 43215-2998

OPINION

Wise J.

Appellant Maxwell D. White, Jr. is appealing the decision of the Ashland County Court of Common Pleas that dismissed his petition for postconviction relief. The following facts give rise to this appeal.

On January 19, 1996, at 3:00 a.m., appellant shot Ohio Highway Patrol Trooper Jim Gross, killing him. On the day prior to the shooting, appellant, disgruntled by a visit with his parole officer, decided to go to a bar rather than report to work. Appellant stopped at his residence, which he shared with his mother, Jean White, at approximately 5:00 p.m., to pick up his pool cue. Appellant frequented several bars and returned home that evening, extremely intoxicated, at approximately midnight.

Upon returning home, appellant got into an argument with his mother. Appellant's sister arrived, at the residence, to help calm appellant, but this only increased appellant's anger. Following this confrontation with his mother and sister, appellant decided he would leave home and began packing his belongings, including his gun collection. Appellant eventually ordered his mother to pack for him fearing she or his sister would call the police.

Prior to leaving the residence, appellant tied his mother and sister to a pole in the basement. While fumbling with a gun, the gun discharged, striking appellant's mother in the foot. Appellant then left the residence and began driving his vehicle at a high rate of speed on Interstate 71. Several motorists reported an automobile driving recklessly to the State Highway Patrol. Trooper James Gross received these reports and left the field post to investigate. Within a few minutes, Trooper Gross spotted appellant's vehicle and pursued it. Prior to stopping appellant, Trooper Gross called in appellant's license plate number and learned that appellant had a prior conviction for drunk driving.

At trial, several passing motorists testified they saw Trooper Gross standing beside the driver-side-door of appellant's vehicle. The door of appellant's vehicle was open and it appeared that appellant and Trooper Gross were wrestling. At that point, appellant fired two shots at Trooper Gross, striking him in the left arm and back. The shot to the back occurred after Trooper Gross fell to the ground attempting to run back to his cruiser. Although a passing motorist stopped to help Trooper Gross and radioed for emergency medical technicians, Trooper Gross could not be revived. Trooper Gross died as a result of a gun shot wound to the right ventricle of his heart.

Immediately following the shooting, appellant fled the scene in his vehicle. Witnesses to the shooting began following appellant. After a chase involving both truck drivers and law enforcement, at speeds reaching one hundred miles per hour, appellant crashed his vehicle when he skidded off the road at an exit ramp. Law enforcement officials took appellant into custody.

The Ashland County Grand Jury indicted appellant on January 25, 1996, charging appellant with the aggravated murder of James Gross. Count One of the Indictment contained the following three specifications: R.C. 2929.04(A)(3),committed for the purpose of escaping detection, apprehension, trial or punishment for another offense committed by the offender; R.C. 2929.041(A)(6), the victim was a peace officer whom the offender had reasonable cause to know or knew to be such, and was engaged in his duties; and R.C. 2941.141, the offender had a firearm on or about his person or under his control while committing the offense of aggravated murder. Count Two of the indictment charged appellant with having weapons while under disability. Count Three of the indictment charged appellant with the crime of abduction of Jean White with the specification of having a firearm on or about his person or under his control while committing the offense of abduction.

The trial court arraigned appellant on the above charges on January 23, 1996. Appellant entered a plea of not guilty by reason of insanity. The trial court conducted a competency hearing on April 22, 1996. Dr. James F. Sunbury, Psychologist, prepared a psychological evaluation of appellant. In this report, Dr. Sunbury stated that appellant was competent to stand trial. The parties thereafter stipulated to appellant's competency and the trial court accepted the stipulation and ruled that appellant was competent to stand trial. The trial of this matter commenced on June 10, 1996. Following deliberations, on June 19, 1996, the jury returned a verdict finding appellant guilty, as charged in the indictment. The trial court proceeded to the mitigation phase of the trial on June 24, 1996. The jury began deliberations, regarding the mitigation phase, on June 28, 1996. On June 29, 1996, the jury returned its verdict recommending the sentence of death for the aggravated murder of Trooper Gross. The trial court accepted the recommendation, on July 10, 1996, and sentenced appellant to death. The trial court also sentenced appellant to eighteen months on the charge of having weapons while under disability and five to ten years on the count of abduction, to be served consecutively to the other charges.

Appellant filed a notice of appeal to this Court on August 14, 1996. We dismissed appellant's appeal for want of jurisdiction on September 24, 1996. Appellant filed a motion for reconsideration, which we denied, on October 28, 1996. Appellant subsequently appealed to the Ohio Supreme Court.^[1] On May 5, 1997, appellant filed a petition to vacate or set aside sentence pursuant to R.C. 2953.21. Appellant requested an evidentiary hearing on his postconviction claims. On May 29, 1997, appellant amended his petition for postconviction relief. In addition to his petition for postconviction relief, appellant also filed a motion for discovery, motion for an order to the Ashland County Prosecutor's Office to preserve and allow inspection of potential exculpatory evidence and a motion to secure funds for expert assistance and leave to amend.

The trial court scheduled an oral hearing on the petition for postconviction relief and on the above motions for July 2, 1997. Prior to the scheduled hearing, the state filed a motion requesting until July 8, 1997, to respond to the petition for postconviction relief. Thereafter, appellant filed a motion for clarification on June 11, 1997, requesting clarification of the scope and nature of the hearing scheduled for July 2, 1997. In a letter dated June 13, 1997, the trial court advised the parties that the hearing scheduled for July 2, 1997, was to address issues in connection with a motion to correct the record filed in the direct appeal to the Ohio Supreme Court. The trial court also indicated, in the letter, that at the hearing on July 2, 1997, it would schedule a hearing date on the petition for postconviction relief.

The trial court subsequently scheduled a hearing, on July 30, 1997, on all motions pending in connection with the petition for postconviction relief. On July 8, 1997, the state filed a response requesting dismissal of appellant's postconviction petition. Appellant filed a response to the state's request for a dismissal on July 21, 1997. At the hearing on July 30, 1997, the trial court limited oral argument to the state's motion to dismiss appellant's petition for postconviction relief.

The trial court granted the state's motion to dismiss appellant's petition for postconviction relief on August 18, 1997. Appellant timely filed a notice of appeal to this Court on September 17, 1997, and sets forth the following assignments of error for our consideration:

I. THE TRIAL COURT ERRED IN FAILING TO REVIEW THE RECORD OF THE ENTIRE PROCEEDINGS AGAINST MR. WHITE AS MANDATED BY OHIO REV. CODE SECTION 2953.21(C) AND (E).

II. THE TRIAL COURT ERRED IN GRANTING THE STATE'S MOTION TO DISMISS UNDER RULE TWELVE OF THE OHIO RULES OF CIVIL PROCEDURE.

III. THE TRIAL COURT ERRED IN DISMISSING APPELLANT'S CAUSES OF ACTION REGARDING INEFFECTIVE ASSISTANCE OF COUNSEL WITHOUT FIRST GRANTING DISCOVERY AND AN EVIDENTIARY HEARING IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, NINTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, § 1, 2, 5, 9, 10, 16, AND 20 OF THE OHIO CONSTITUTION.

IV. THE TRIAL COURT ERRED IN DENYING PETITIONER'S MOTIONS AND DISMISSING HIS POST-CONVICTION PETITION WITHOUT GRANTING DISCOVERY AND AN EVIDENTIARY HEARING.

IV

We will address appellant's fourth assignment of error first. In his fourth assignment of error, appellant contends he was entitled to discovery and an evidentiary hearing in regards to his petition for postconviction relief. We disagree.

Pursuant to R.C. 2953.21(C), before granting a hearing, the trial court shall determine whether there are substantive grounds for relief. The petitioner bears the burden of specifically demonstrating prejudice, before a hearing is warranted. E.g. State v. Jackson (1980), 64 Ohio St.2d 107. In addition, the claims must rely upon evidence outside the record in order to avoid the doctrine of res judicata...