State v. Richard R. Bays

• Decision Date: 30 January 1998
• Docket Number: 98-LW-0060,96-CA-118
• Parties: STATE OF OHIO, Plaintiff-Appellee v. RICHARD R. BAYS, Defendant-Appellant CASE NO. 96-CA-118
• Court: Ohio Court of Appeals

STATE OF OHIO, Plaintiff-Appellee v. RICHARD R. BAYS, Defendant-Appellant

T.C. NO. 94-CR-30

No. 96-CA-118

98-LW-0060 (2nd)

January 30, 1998

ROBERT K. HENDRIX, S.Ct. Regis. No. 37351, Greene County Courthouse Xenia, OH 45385, Attorney for Plaintiff-Appellee STATE OF OHIO

DENNIS A. LIEBERMAN, S. Ct. Regis. No. 29460, 318 West Fourth Street, Dayton, OH 45402, Attorney for Defendant-Appellant RICHARD R. BAYS

OPINION

FAIN J.

Petitioner-appellant Richard R. Bays appeals from an order denying his petition for post-conviction relief, without an evidentiary hearing. Bays claims that affidavits attached to his petition were sufficient to warrant an evidentiary hearing to determine whether he had properly waived his right to a jury trial and whether his trial counsel was ineffective, thereby depriving him of a fair trial.

After reviewing Bays's petition, we conclude that the affidavits of Martha Bays and James Dalton set forth sufficient unrebutted facts to warrant an evidentiary hearing in which Bays would have the opportunity to prove the merits of his accusations. Accordingly, the order of the trial court dismissing Bays's petition is Reversed, and this cause is Remanded for further proceedings consistent with this opinion.

In December, 1995, a three-judge panel convicted petitioner-appellant Richard R. Bays of Aggravated Murder (felony-murder), in violation of R.C. 2903.01(B), with a death penalty specification, and Aggravated Robbery, in violation of R.C. 2911.01(A)(2). Subsequently, the three-judge panel entered its judgment finding that the aggravating circumstances of the Aggravated Murder offense outweighed the mitigating circumstances. Bays was sentenced to death for the Aggravated Murder conviction and was sentenced to an indefinite term of from ten years of actual incarceration to twenty-five years for Aggravated Robbery. Bays has appealed from his conviction and sentence, and his direct appeal is currently pending as State v. Bays Montgomery App. No. 95-CA-0118.

In July, 1996, Bays filed a self-styled Petition To Vacate Or Set Aside Conviction And Sentence Pursuant To Ohio Revised Code § 2953.21. In response, the State filed a motion to dismiss. The panel denied Bays's petition, without an evidentiary hearing, after finding that he was not entitled to relief pursuant to R.C. 2953.21(C). Subsequently, Bays filed a motion to vacate in which he claimed that the entry denying his petition was void because the Honorable M. David Reid, a member of the three-judge panel, signed the entry instead of the presiding judge, the Honorable Joseph B. Grigsby. Bays also filed a motion to amend his petition. On September 16, 1996, Bays filed this appeal from the order of the panel denying his petition for post-conviction relief. Thereafter, on October 24, 1996, the panel, in a judgment entry signed by Judge Grigsby, reaffirmed its previous decision to deny Bays's petition and also denied Bays's subsequent motions.

From the order dismissing his petition for post-conviction relief, Bays appeals.

Bays's First Assignment of Error is as follows:

THE TRIAL COURT ERRED IN DISMISSING DEFENDANT'S MOTION FOR POST CONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING.

Bays claims that the three-judge panel erred in failing to hold an evidentiary hearing to determine the merits of his petition for post-conviction relief. Bays argues that his petition and the affidavits attached thereto were sufficient to warrant an evidentiary hearing.

Pursuant to R.C. 2953.21(A)(1), any person who has been convicted of a criminal offense and who claims a denial of his constitutional rights may file a petition in the court that imposed the sentence asking the court to vacate the judgment. Before the trial court grants a hearing on the petition, it must first determine whether there are substantive grounds for relief. R.C. 2953.21(C). The trial court must proceed to a prompt hearing unless it determines that that the petitioner is not entitled to relief. R.C. 2953.21(E).

A petition for post-conviction relief is a civil proceeding. State v. Harvey (1980), 68 Ohio App.2d 170, 171, 22 O.O.3d 235, 428 N.E.2d 437, quoting State v. Milanovich (1975), 42 Ohio St.2d 46, 49, 71 O.O.2d 26, 32 N.E.2d 540. As this court has previously stated:

A hearing is not automatically required whenever a petition for post conviction relief is filed. The test is whether there are substantive grounds for relief that would warrant a hearing based upon the petition, the supporting affidavits and the files and records in the case.

State v. Strutton (1988), 62 Ohio App.3d 248, 251, 575 N.E.2d 466, citing State v. Jackson (1980), 64 Ohio St.2d 107, 110, 18 O.O.3d 348, 350, 413 N.E.2d 819, 822.

Further, "[w]here a petition for a postconviction remedy under Section 2953.21, Revised Code, alleges grounds for relief, and the record of the original criminal prosecution does not fully rebut the allegations, the petitioner is entitled to an evidentiary hearing in which he is provided an opportunity to prove his allegations." State v. Williams (1966), 8 Ohio App.2d 135, paragraph one of the syllabus, 37 O.O.2d 152, 220 N.E.2d 837. Conversely, "[a] petition for post-conviction relief is subject to dismissal without a hearing when the record indicates that the petitioner is not entitled to relief and that the petitioner failed to submit evidentiary documents containing sufficient operative facts." State v. Scott (1989), 63 Ohio App.3d 304, 307, 578 N.E.2d 841. To determine whether the petitioner is entitled to an evidentiary hearing, the trial court may accept affidavits as true for the purpose of showing substantive grounds for relief. State v. Swortcheck (1995), 101 Ohio App.3d 770, 772, 656 N.E.2d 732, citing State v. Strutton (1988), 62 Ohio App.3d 248, 252, 575 N.E.2d 466, 468-469.

In his First Assignment of Error, Bays alleges that his petition for post-conviction relief set forth substantive grounds for relief, as argued in his remaining assignments of error, and that the trial court erred in failing to provide an evidentiary hearing to determine the merits of those claims. Bays does not set forth any substantive grounds for relief in his First Assignment of Error, but rather, he relies on his other assignments of error to establish those grounds. Accordingly, we will overrule Bays's First Assignment of Error as having no independent significance, and we will review his remaining assignments of error in light of the aforementioned authority and with the understanding that Bays seeks an evidentiary hearing for each of his claims.

Bays's First Assignment of Error is overruled.

Bays's Second and Fourth Assignments of Error are as follows:

THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S FIRST CAUSE OF ACTION AS APPELLANT'S PETITION WITH THE SUPPORTING AFFIDAVITS CONTAINED SUFFICIENT OPERATIVE FACTS TO DEMONSTRATE THE LACK OF VOLUNTARY, KNOWING AND INTELLIGENT WAIVER OF JURY.

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING A MOTION TO AMEND PETITION FILED BY THE APPELLANT.

In his Second Assignment of Error, Bays claims that he did not execute an intelligent, knowing, and voluntary waiver of his right to a jury trial when he signed a written waiver of that right before trial. Bays claims that he was not adequately informed of all of the implications associated with his constitutional right to a jury trial and that, as a result, he erroneously waived his right to a jury trial in favor of a three-judge panel. Specifically, Bays maintains that he was not informed that a mere majority vote of the panel could result in his conviction of the crimes charged. Furthermore, Bays contends that panel failed to adequately explain in lay terms the ramifications of his waiver.

We note that Bays advances this same argument in his Fourth Assignment of Error in his direct appeal from his conviction and sentence -- Montgomery App. No. 96-CA-118. Virtually his entire argument relies on evidence in the record, which permits this court to decide the issue in the direct appeal. The only evidence dehors the record regarding this matter is an affidavit signed by Bays attached to his motion to amend the petition for post-conviction relief.

In his Fifth Assignment of Error, Bays claims that the panel erred in denying his motion to amend petition. The panel denied Bays's petition for post-conviction relief on August 21, 1996. Bays filed his motion to amend petition and his motion to vacate judgment on August 26, 1996. On September 16, 1996, Bays filed a notice of appeal from the panel's order denying his petition for post-conviction relief. The panel later denied Bays's two motions in an entry dated October 24, 1996.

It is not clear whether this court has jurisdiction to review the panel's October 24 judgment, since it was rendered after Bays filed his notice of appeal. See App.R. 3(D); Transamerica Ins. Co. v. Nolan (1995), 72 Ohio St.3d 320, 322, 649 N.E.2d 1229 ("Pursuant to App.R. 3(A), the only jurisdictional requirement for the filing of a valid appeal is the timely filing of a notice of appeal."). Bays did not seek to amend his notice of appeal pursuant to App.R. 3(F) to include the October 24 entry. Nevertheless, assuming for purposes of analysis that we do have jurisdiction, we must conclude that the trial court did not abuse its discretion in denying Bays's motions.

Bays's motion to amend his petition for post-conviction relief was filed five days after the panel entered its order denying the petition. R.C. 2953.21(F) states that the petitioner may amend the petition at any time before the answer or motion is filed without leave of the court. However, after the answer or motion is filed, the petitioner may only amend the petition with leave of the court. In the case before use, the panel...