State v. Mills, 2009 Ohio 5654 (Ohio App. 10/20/2009)

Decision Date20 October 2009
Docket NumberNo. 2008 AP 08 0051.,2008 AP 08 0051.
Citation2009 Ohio 5654
PartiesState of Ohio, Plaintiff-Appellee, v. Marsha J. Mills, Defendant-Appellant.
CourtOhio Court of Appeals

Emily A. Laube, Special Assistant County Prosecutor, 30 East Broad Street, Columbus, OH 43215, for Plaintiff-Appellee.

Paula Brown, Kristopher Haines, 65 East State Street, Ste. 200, Columbus, OH 43215, William Bluth, 394 S. Columbia Avenue, Bexley, OH 43209-1629, for Defendant-Appellant.

Before: Hon. W. Scott Gwin, P.J., Hon. Julie A. Edwards, J., Hon. Patricia A. Delaney, J.

OPINION

GWIN, P.J.

{¶1} Defendant-appellant Marsha Mills appeals from the July 18, 2008 Judgment Entry of the Tuscarawas County Court of Common Pleas overruling her Petition to Vacate or Set Aside Judgment and Sentence and her Amended Petition to Vacate or Set Aside Judgment and Sentence [hereafter referred to as "PCR petition"] and granting the plaintiff-appellee State of Ohio's motion to dismiss.

STATEMENT OF FACTS IN THE CASE

{¶2} This appeal stems from the death of two-year-old Noah Shoup while in appellant's care.

{¶3} Appellant was indicted by the Tuscarawas County Grand Jury on three counts of murder in violation of R.C. 2903.02(B), one count of felonious assault in violation of R.C. 2903.11(A)(1), and two counts of child endangering in violation of R.C. 2919.22(B)(1) and (3). The State voluntarily dismissed one count of murder and one count of child endangering. After considering the evidence presented the jury found the appellant guilty on the remaining charges. Appellant was sentenced to serve an aggregate prison term of fifteen years to life. For a complete statement of the underlying facts see State v. Mills, Tuscarawas App. No. 2007 AP 07 0039, 2009-Ohio-1849.

{¶4} On April 15, 2009, this Court upheld appellant's convictions and sentence. State v. Mills, supra. The Ohio Supreme Court denied jurisdiction over the case. State v. Mills, ___ Ohio St.3d ___, ___ N.E.2d ___, 2009-Ohio-4233 (Ohio Aug 26, 2009) (Table, NO. 2009-0996).

{¶5} Appellant filed her post-conviction petition pursuant to R.C. 2953.21 on April 28, 2008; she filed an amended petition on May 13, 2008. The state filed a motion to dismiss the petition on May 22, 2008. Appellant filed a reply to the state's motion on May 30, 2008.

{¶6} By Judgment Entry filed July 18, 2008, the trial court denied appellant's petition, amended petition, and granted the state's motion to dismiss.

{¶7} On August 1, 2009 appellant filed a motion to reconsider. The state filed its opposition to the motion on August 8, 2008. By Judgment Entry filed September 12, 2008, the trial court denied appellant's motion to reconsider.1

{¶8} It is from the trial court's Judgment Entry filed July 18, 2008 denying her PCR petition that appellant timely appeals, raising the following four assignment of error for our consideration:

{¶9} "I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S CLAIMS FOR RELIEF THAT SHE WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE OHIO AND UNITED STATES CONSTITUTION.

{¶10} "II. THE TRIAL COURT ERRED WHEN IT REFUSED TO GRANT AN EVIDENTIARY HEARING ON APPELLANT'S POST CONVICTION PETITION IN VIOLATION OF APPELLANT'S RIGHTS AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS.

{¶11} "III. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S REQUEST TO CONDUCT DISCOVERY.

{¶12} "IV. THE TRIAL COURT ERRED WHEN IT REFUSED TO ADMIT DR. PLUNKETT' S CURRICULUM VITAE INTO EVIDENCE."

Standard of Review

{¶13} 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."

{¶14} A petition for post-conviction relief is a means to reach constitutional issues that would otherwise be impossible to reach because the evidence supporting those issues is not contained in the record of the petitioner's criminal conviction. State v. Murphy (Dec. 26, 2000), Franklin App. No. 00AP-233. Although designed to address claimed constitutional violations, the post-conviction relief process is a civil collateral attack on a criminal judgment, not an appeal of that judgment. State v. Calhoun (1999), 86 Ohio St.3d 279, 281, 714 N.E.2d 905; State v. Steffen (1994), 70 Ohio St.3d 399, 410, 639 N.E.2d 67. A petition for post-conviction relief, thus, does not provide a petitioner a second opportunity to litigate his or her conviction, nor is the petitioner automatically entitled to an evidentiary hearing on the petition. State v. Jackson (1980), 64 Ohio St.2d 107, 110, 413 N.E.2d 819. State v. Lewis, Stark App. No.2007CA00358, 2008-Ohio-3113 at ¶ 8.

a. Right to Evidentiary Hearing.

{¶15} In determining whether a hearing is required, the Ohio Supreme Court in State v. Jackson (1980), 64 Ohio St.2d 107, 413 N.E.2d 819, 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.

{¶16} As the Supreme Court further explained in Jackson, supra, "[b]road assertions without a further demonstration of prejudice do not warrant a hearing.." Id. at 111, 413 N.E.2d 819. 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).

{¶17} Evidence submitted in support of the petition "`must meet some threshold standard of cogency; otherwise it would be too easy to defeat the holding of [State v. Perry (1967), 10 Ohio St.2d 175] by simply attaching as exhibits evidence which is only marginally significant and does not advance the petitioner's claim beyond mere hypothesis and a desire for further discovery.'"(Citation omitted.); State v. Lawson (1995), 103 Ohio App.3d 307, 315, 659 N.E.2d 362. Thus, the evidence must not be merely cumulative of or alternative to evidence presented at trial. State v. Combs (1994), 100 Ohio App.3d 90, 98, 652 N.E.2d 205.

{¶18} Additionally, "where a petitioner relies upon affidavit testimony as the basis of entitlement to post-conviction relief, and the information in the affidavit, even if true, does not rise to the level of demonstrating a constitutional violation, then the actual truth or falsity of the affidavit is inconsequential." State v. Calhoun (1999), 86 Ohio St.3d 279, 284, 714 N.E.2d 905.

{¶19} 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, 104 S.Ct. 2052 test is to be applied. Hill v. Lockhart (1985), 474 U.S. 52, 58, 106 S.Ct. 366; State v. Lytle (1976), 48 Ohio St.2d 391, 358 N.E.2d 623; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373; State v. Cole, supra, 2 Ohio St.3d at 114, 443 N.E.2d 169. 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.

{¶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.

B. Res Judicata.

{¶21} Another proper basis upon which to deny a petition for post-conviction relief without holding an evidentiary hearing is res judicata. Lentz, 70 Ohio St.3d at 530; State v. Lawson, supra.

{¶22} 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 on an appeal from that judgment. State v. Szefcyk (1996), 77 Ohio St.3d 93, 671 N.E.2d 233, syllabus, approving and following State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104, paragraph nine of the syllabus. It is well settled that, "pursuant to res judicata, a defendant cannot raise an issue in a [petition] for post conviction relief if he or she could have raised the issue on direct appeal." State v. Reynolds (1997), 79 Ohio St.3d 158, 161, 679 N.E.2d 1131. Accordingly, "[t]o survive preclusion by res judicata, a petitioner must produce new evidence that would render the judgment void or voidable and must also show that he could not have appealed the claim based upon information contained in the original record." State v. Nemchik (Mar. 8, 2000), Lorain...

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