State v. Mitchell

• Decision Date: 09 May 1988
• Docket Number: No. 53585,53585
• Citation: 53 Ohio App.3d 117,559 N.E.2d 1370
• Parties: The STATE of Ohio, Appellee, v. MITCHELL, Appellant. *
• Court: Ohio Court of Appeals

Page 117

53 Ohio App.3d 117

559 N.E.2d 1370

The STATE of Ohio, Appellee, v. MITCHELL, Appellant. ^*

No. 53585.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

May 9, 1988.

Syllabus by the Court

Although a defendant enjoys a constitutionally ensured right to the effective assistance of counsel on direct appeal, R.C. 2953.21 does not provide a state statutory remedy to redress the defendant's claim that he was denied the effective assistance of appellate counsel.

John T. Corrigan, Prosecuting Atty., and George J. Sadd, Cleveland, for appellee.

Paul Mancino, Jr., Cleveland, for appellant.

JOHN V. CORRIGAN, Judge.

The petitioner-appellant, Leon Mitchell, appeals the trial court's dismissal of his petition for post-conviction relief.

On December 17, 1982, the appellant was indicted for murder, in violation of R.C. 2903.02, following the November 26, 1982 death of Sam Serenas from gunshot wounds. The appellant pleaded not guilty. On November 9, 1983, following a trial by jury, the appellant was found guilty of murder and was sentenced to a term of imprisonment for fifteen years to life.

Mitchell appealed his conviction, contending that the jury's verdict of murder was against the manifest weight of the evidence, since, he claimed, he had proven self-defense by a preponderance of the evidence. The court of appeals found no such error and affirmed the trial court's conviction in State v. Mitchell (Oct. 25, 1984), Cuyahoga App. No. 48039, unreported, 1984 WL 5286. The Supreme Court overruled the appellant's motion for leave to appeal the court of appeals' decision. Throughout his direct appeals, the appellant continued to be represented by his trial counsel.

On May 19, 1986, the appellant, represented by new counsel, filed his petition for post-conviction relief, claiming that his constitutional rights were denied through ineffective assistance of counsel at trial and on direct appeal. On August 7, 1986, the trial court dismissed the appellant's petition and, on February 27, 1987, the court filed its findings of fact and conclusions of law.

The petitioner-appellant now appeals, bringing two assignments of error:

"I. The court committed prejudicial error in holding that Section 2953.21 of the Ohio Revised Code is not a proper form [sic ] for addressing ineffective assistance of counsel on appeal.

"II. Petitioner was denied the effective assistance of trial and appellate counsel in this case and was entitled to post-conviction relief."

These assignments of error are overruled. Since they are interrelated, they will be addressed together.

The appellant claims that the trial court erred in finding that the post-conviction remedies provided by R.C. 2953.21 are not available to redress claims of ineffective assistance of appellate counsel. We find no such error.

The United States Constitution assures the right to the effective assistance of counsel on a criminal defendant's first appeal as of right. Evitts v. Lucey (1985), 469 U.S. 387, 392-407, 105 S.Ct. 830, 833-842, 83 L.Ed.2d 821. Accordingly, we agree that in this case the petitioner-appellant enjoys a constitutionally ensured right to the effective assistance of counsel on direct appeal. Nonetheless, we find that R.C. 2953.21 does not provide a state statutory remedy to address the appellant's claim that he was denied the effective assistance of appellate counsel.

R.C. 2953.21 was originally enacted by the Ohio Legislature to provide a state remedy to attack a judgment of conviction where such judgment was based on a denial of the prisoner's constitutionally ensured rights. See Freeman v. Maxwell (1965), 4 Ohio St.2d 4, 33 O.O.2d 2, 210 N.E.2d 885. Post-conviction remedies are available to any person convicted of a criminal offense upon a showing "that there was such a denial or infringement of his rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States." (Emphasis added.) R.C. 2953.21. See, also, State v. Perry (1967), 10 Ohio St.2d 175, 39 O.O.2d 189, 226 N.E.2d 104, paragraph four of the syllabus.

Furthermore, where the trial court finds such a constitutioanl deprivation so as to render a judgment of conviction void or voidable, R.C. 2953.21(G) provides that the court "shall enter a judgment that vacates and sets aside the judgment in question, and, in the case of a prisoner in custody, shall discharge or resentence him or grant a new trial as may appear appropriate."

In Perry, supra, paragraph five of the syllabus, explains: "A judgment of conviction is void within the meaning of Section 2953.21 et seq., Revised Code, if rendered by a court having either no jurisdiction over the person of the defendant or no jurisdiction of the subject matter. * * * " The court also construed the term "voidable," as used in R.C. 2953.21, to implicate "voidable judgments of conviction." ¹ Id. at 179-180, 39 O.O.2d at 192, 226 N.E.2d at 108.

The appellant argues that post-conviction remedies provided by R.C. 2953.21 are available to redress the denial of constitutionally ensured rights at the appellate level. We disagree.

Should Ohio's statute providing for post-conviction remedies be applicable to appellate court decisions, either of two patently unacceptable results follows: in effect, the criminal defendant would either be petitioning the trial court (1) to render its own judgment of conviction void or voidable due to the denial of constitutional guarantees at the appellate level, or (2) to render the judgment of the superior appellate court void or voidable due to the denial of constitutional guarantees at the appellate level. We find that neither of these results is acceptable; both are clearly outside the purview of the Ohio Legislature in its enactment of R.C. 2953.21 et seq. An appellate court decision found to be constitutionally wanting by a trial court will not render a trial court's judgment of conviction void or voidable; a trial court is not empowered to render an appellate court decision void or voidable.

In State v. Rone (Aug. 31, 1983), Hamilton App. No. C-820640, unreported, 1983 WL 5172, the Court of Appeals for Hamilton County addressed the applicability of Ohio's post-conviction remedies to appellate court judgments. The court determined at 6:

"[A] meritorious claim of ineffective assistance of appellate counsel can, in no way, be construed to render a judgment of conviction void * * *. Moreover, we seriously question whether such a claim would make the trial court's judgment voidable in the sense that it would require that the conviction be vacated and set aside." (Emphasis sic.)

The court further determined at 7:

"[T]he jurisdiction of an intermediate appellate court is superior to that of a trial court, and a trial court may take no action to impede or impinge upon the jurisdiction of a reviewing court * * * by ordering a new appeal, nor does it have the power, as an inferior tribunal, to vacate or set aside a judgment of the court of appeals."

Accordingly, we find that R.C. 2953.21 provides for post-conviction remedies to redress constitutionally void or voidable judgments of conviction. The Ohio statute does not provide a remedy to redress state appellate court decisions claimed to result in the denial of constitutionally ensured guarantees. Therefore, we find that the trial court properly dismissed the appellant's claim of ineffective assistance of appellate counsel brought before the court on his petition for post-conviction relief.

On appeal, the appellate also claims that the trial court erred in denying him post-conviction relief due to the ineffective assistance of trial counsel. We find no such error.

In this appeal, the appellant contends that counsel's failure to object to the court's instructions on the issue of intent was improper and prejudicial. He also contends that counsel's failure to object to the court's failure to instruct the jury on the lesser included offense of voluntary manslaughter was unfairly prejudicial. We disagree with these contentions, finding that a trial attorney does not violate any substantial duty in failing to make futile objections.

After reviewing the merits of the appellant's...