State v. Pierce

Citation127 Ohio App.3d 578,713 N.E.2d 498
Decision Date18 May 1998
Docket NumberNo. 97-L-033,97-L-033
PartiesThe STATE of Ohio, Appellee, v. PIERCE, Appellant.
CourtUnited States Court of Appeals (Ohio)

Charles E. Coulson, Lake County Prosecuting Attorney, and Wendy J. Smither, Assistant Prosecuting Attorney, Painesville, for appellee.

Michael A. Partlow, Cleveland, for appellant.

WILLIAM M. O'NEILL, Judge.

Appellant, Sherman W. Pierce, appeals from a final judgment of the Lake County Court of Common Pleas which granted summary judgment in favor of appellee, the state of Ohio, on appellant's petition for postconviction relief. For the reasons that follow, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

On July 28, 1989, appellant was indicted by the Lake County Grand Jury on the following: one count of rape in violation of R.C. 2907.02, one count of kidnapping in violation of R.C. 2905.01, and one count of felonious sexual penetration in violation of R.C. 2907.12. Appellant was arraigned in the Lake County Court of Common Pleas on August 1, 1989, and entered a plea of "not guilty" to all charges. A jury trial commenced on November 6, 1989.

The following evidence was presented at appellant's trial. On July 23, 1989, the victim in this case, an eleven-year-old girl, was taken to a local swimming pool in Painesville, Ohio, by appellant and Olivia Hughes. On the day of the alleged incident, Hughes was living with the victim and her family as well as dating appellant. At approximately 5:00 p.m., the victim was picked up and returned home from the swimming pool by Hughes and appellant. Thereafter, the victim took a nap and was later awakened by the sound of a vehicle's horn outside her home. When she went outside, the victim observed appellant in his car. It is undisputed that appellant took the victim to Burger King.

The victim testified that after going through the "drive-thru" at Burger King, appellant proceeded to the Villa Rosa Motel in Painesville Township, Lake County. Appellant appeared drunk and asked the victim if she had "ever done it with a boy." The victim responded, "No." Upon arriving at the motel, the victim entered room No. 6 with appellant. The victim stated that once she was inside the room her clothing was removed, a tube of lotion was inserted in her vagina, and appellant performed sexual intercourse with her against her will.

Upon her return home, somewhere around 8:00 p.m., the victim told Hughes what had occurred. Hughes immediately took the victim to the hospital, where they arrived at 8:16 p.m. At the hospital, the victim was examined by Dr. Barbara A. Jordan. Samples were taken with a rape evidence kit and sent to the Lake County Regional Forensic Laboratory, which concluded that there was no evidence of semen, blood, hair, or saliva or any trace evidence of value. During the course of the physical examination of the victim, Dr. Jordan noted redness about the victim's vagina, and the opening about her hymen had expanded to about twice the size of a normal preadolescent female. The doctor further noted a "milky type of whitish discharge" in the victim's vagina. In the doctor's medical opinion, the victim exhibited signs of sexual abuse.

After her release from the hospital, the victim was interviewed at the Lake County Sheriff's Department. At trial, the deputies testified that the information obtained by the victim was consistent with what they had found during the course of the investigation. Specifically, appellant was found in room No. 6 of the Villa Rosa Motel at approximately 9:00 p.m. the day of the alleged incident. The layout of the room coincided with the victim's statement, and items were found which the victim had described, including a tube of Oil of Olay lotion. A later examination of the outside of the tube of lotion by the Lake County Regional Forensic Laboratory revealed no cellular material.

Appellant, taking the stand in his own defense, denied any involvement in the crimes charged. Although appellant admitted taking the victim to Burger King the night of July 23, 1989, appellant testified that he dropped her off at the restaurant and continued his journey, stopping at various drinking establishments and visiting with family members. Therefore, a key question in dispute at trial was the whereabouts of appellant between 6:00 and 9:00 the evening of July 23, 1989. Appellant produced witnesses at trial who testified to seeing appellant purchasing gasoline at approximately 6:10 p.m. and could account for his whereabouts between approximately 6:30 p.m. to 7:30 p.m. and 8:30 p.m. to 8:40 p.m.

On November 8, 1989, following the presentation of the above evidence, a jury found appellant guilty on all three counts. He was later sentenced to serve consecutive life sentences on the charges of rape and felonious sexual penetration and ten to twenty-five years on the charge of kidnapping.

On December 15, 1989, appellant filed a timely notice of appeal with this court. Appellant was represented on appeal by his trial attorney. In State v. Pierce (Dec. 28, 1990), Lake App. No. 89-L-14-170, unreported, 1990 WL 222991, this court affirmed appellant's conviction. On June 7, 1991, the Supreme Court of Ohio denied appellant's motion for leave to appeal from our decision. Thereafter, appellant filed an application with this court to reopen his appeal based upon ineffective assistance of appellate counsel. This court denied appellant's application on August 18, 1995, on the grounds that the application was not timely filed and no good reason existed for the delay. This judgment was affirmed by the Supreme Court of Ohio on February 23, 1996.

On September 20, 1996, appellant filed a petition for postconviction relief and requested an evidentiary hearing. In his petition, appellant alleged that he was denied the effective assistance of trial counsel because his attorney failed and refused to call certain witnesses on his behalf including, but not limited to, Michael Smith and Mimi Pace. 1 Appellant further alleged that his trial counsel failed, despite his repeated request that he do so, to do the following: properly subpoena a senior criminologist from the Lake County Regional Forensic Laboratory to testify concerning the "milky type of whitish discharge" observed by Dr. Jordan, make arrangements for him to wear normal street clothes during the trial instead of jail garb, and employ expert witnesses to testify on his behalf. In addition, appellant alleged that he was heavily sedated during his trial, incompetent, and otherwise unable to assist his trial counsel.

In his petition, appellant attached an affidavit from one Michael Smith, who averred that appellant was at the Liberty Bar on July 23, 1989 between the hours of 7:45 p.m. and 8:00 p.m., thereby raising the issue whether the alleged incident could have occurred within the time frame presented by appellee. 2 Smith further averred that he was ready, willing, and able to testify to these matters at trial and informed appellant's trial counsel of this fact. However, appellant's trial counsel failed to contact Smith. As stated earlier, from a factual standpoint, the whereabouts of appellant between 6:00 p.m. and 9:00 p.m. was a critical element to be weighed by the jury.

On September 24, 1996, appellant filed a supplemental affidavit, in which he stated his personal knowledge of the above instances of his trial counsel's ineffectiveness. However, aside from the affidavit of Smith, appellant presented no other evidence to support his allegations that he was denied the effective assistance of trial counsel.

On November 29, 1996, appellee filed a response in opposition to appellant's petition for postconviction relief and requested that the trial court grant summary judgment in its favor. Appellee argued that appellant failed to meet his burden to submit evidentiary documents containing sufficient operative facts demonstrating the lack of competent counsel and that he was prejudiced by counsel's ineffectiveness. Additionally, appellee attached an affidavit from appellant's trial counsel which averred that he made numerous attempts to call Mimi Pace as a potential witness but was unable to do so because she repeatedly made herself unavailable. Appellant's trial counsel stated that he made a tactical decision not to employ additional medical and expert testimony because the only physical evidence in the case was exculpatory. He further stated that appellant had an understanding of both the surroundings and nature of the proceedings against him and assisted in his own legal defense. Appellant's trial counsel, due to the lapse of time, did not recall the circumstances surrounding appellant's attire at trial. While appellant's trial counsel made no mention why he failed to call Smith to testify at trial, appellee argued that Smith's testimony was of no consequence, as "counsel was able to secure the testimony of three alibi witnesses with regard to the pertinent and relevant time frame of the petitioner's whereabouts on July 23, 1989." On January 6, 1997, appellant filed a memorandum in opposition to the state's request for summary judgment and again requested that the trial court conduct an evidentiary hearing on this matter.

On January 29, 1997, the trial court, without conducting a hearing, denied appellant's request for postconviction relief and granted appellee's motion for summary judgment. From this judgment, appellant filed a timely notice of appeal and now asserts, in his sole assignment of error, that the trial court erred in denying his petition for postconviction relief without a hearing.

Before reaching the merits of appellant's assignment of error, we initially note that appellant's petition for postconviction relief was timely filed in the trial court. R.C. 2953.21(A)(2), effective September 21, 1995, provides:

"A petition under division (A)(1) of this section...

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