State v. Romell Broom
| Decision Date | 07 May 1998 |
| Docket Number | 98-LW-1679,72581 |
| Parties | STATE OF OHIO, Plaintiff-appellee v. ROMELL BROOM, Defendant-appellant CASE |
| Court | Ohio Court of Appeals |
Civil appeal from Court of Common Pleas, Case No. CR-196643 (Post-Conviction).
For plaintiff-appellee: L. CHRISTOPHER FREY, ESQ., Assistant County Prosecutor, 8th Floor, Justice Center, 1200 Ontario Street, Cleveland, OH 44113.
For defendant-appellant: DAVID H. BODIKER, ESQ., LORI ANN MCGINNIS, ESQ., RICHARD J. VICKERS, ESQ., Assistant State Public Defender, Ohio Public Defenders Comm., 8 East Long Street, 11th Fl., Columbus, OH 43266-0587.
In 1985, a jury found petitioner Romell Broom guilty of one count of aggravated murder, with felony murder specifications, one count of rape, five counts of kidnapping and one count of felonious assault. The jury recommended petitioner receive the death penalty. The court concurred and sentenced petitioner to death and to maximum consecutive sentences on the remaining counts. The convictions were affirmed by this court in State v. Broom (July 23 1987), Cuyahoga App. No. 51237, unreported and the Supreme Court of Ohio in State v. Broom (1988), 40 Ohio St.3d 277.
In February 1990, petitioner filed a petition to vacate or set aside his sentence pursuant to R.C. 2953.21. The petition contained twenty-four claims for relief, which petitioner amended three times in order to attach exhibits. In April 1990, the state filed a motion to dismiss all the claims for relief. The state principally argued that (1) certain arguments raised in the petition had been settled by subsequent decisions of the United States Supreme Court and (2) principles of res judicata barred the assertion of claims that were either raised on direct appeal or could have been raised on direct appeal.
Petitioner opposed the motion to dismiss and at the same time asked the court to stay resolution of the petition pending rulings made in his requests for documents relating to law enforcement investigations into his criminal case. The record shows no ruling on this motion to stay, yet the court did not rule on the merits of the petition until October 31, 1996. It issued findings of fact and conclusions of law rejecting all twenty-four claims for relief.
Petitioner did not immediately appeal from those findings of fact and conclusions of law. After four months, he asked the court for relief from its findings of fact and conclusions of law under Civ.R. 60(A), claiming he did not receive notice that the court had ruled on his petition. The court granted the motion and reissued its findings of fact and conclusions of law.[1] This appeal followed.
The first assignment of error complains the court erred by granting the state's motion to dismiss the petition for postconviction relief on grounds of res judicata. Petitioner argues res judicata is not a valid ground to justify dismissal under Civ.R. 12(B)(6) and, in any event he asserted sufficient facts to show a prima facie case of ineffective assistance of counsel to warrant a hearing.
R.C. 2953.21(C) contemplates that courts will "dismiss" petitions for postconviction relief since it states, "[i]f the court dismisses the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal." A dismissal under R.C. 2953.21 is not akin to a Civ.R. 12(B)(6) dismissal. In State v. Lawson (1995), 103 Ohio App.3d 307, 313, the court stated:
Although the Rules of Civil Procedure generally apply to postconviction proceedings, dismissals rendered under R.C. 2953.21 are different from those made under Civ.R. 12(B). * * * For example, unlike Civ.R. 12(B), R.C. 2953.21 requires the court to look beyond the petition and response and specifically allows the prosecution to respond by motion rather than answer. Because postconviction proceedings are statutorily created, specific requirements set out by statute take priority where they conflict with the Civil Rules. (citations omitted).
Likewise, the general prohibition against raising the defense of res judicata in a Civ.R. 12(B)(6) motion to dismiss, see State ex rel. Freeman v. Morris (1991), 62 Ohio St.3d 107, is inapplicable to postconviction proceedings. Ordinarily, the factual allegations of a complaint should be taken as true. See Vail v. Plain Dealer Publishing Co. (1995), 72 Ohio St.3d 279. This would preclude the court from issuing findings of fact and conclusions of law when ruling on a motion to dismiss since the court makes no factual findings beyond its legal conclusion that the complaint fails to state a claim upon which relief can be granted. State ex rel. Drake v. Athens Cty. Bd. of Elections (1988), 39 Ohio St.3d 40, 41. However, the court is authorized to dismiss a petition for postconviction relief without a hearing if a petitioner fails to submit evidentiary material that sets forth sufficient operative facts to demonstrate substantive grounds for relief. State v. Jackson (1980), 64 Ohio St.2d 107. To that end, R.C. 2953.21(C) requires the court to consider evidentiary materials beyond the pleadings to determine whether there are substantive grounds for relief that warrant a hearing.
We find the court did not commit procedural error by "dismissing" petitioner's petition for postconviction relief. As to whether petitioner set forth sufficient grounds to warrant a hearing, that issue is best addressed in the context of the individual substantive assignments of error. The first assignment of error is overruled.
The second assignment of error complains the court erred by dismissing petitioner's claims concerning the appointment of expert testimony on eyewitness identification. The court found this claim barred by principles of res judicata since the issue had been addressed at trial and on direct appeal. Petitioner does not dispute this point, but instead argues the claim had been raised for the first time in postconviction proceedings in the context of an ineffective assistance of counsel claim, a claim he did not raise on direct appeal. He therefore argues res judicata would not apply to the court's dismissal.
Petitioner's argument is merely an attempt to recast the previously litigated subject of the court's refusal to appoint experts on eyewitness identification into an ineffective assistance of counsel claim. The petition alleged "the trial court's action, by undermining counsel's effectiveness, prejudiced Petitioner Broom."
In State v. Perry (1967), 10 Ohio St.2d 175, paragraph nine of the syllabus, provides:
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 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 or conviction, or on an appeal from that judgment. (emphasis added).
See, also, State v. Szefcyk (1996), 77 Ohio St.3d 93, syllabus.
The substance of the claim - the court's refusal to appoint experts for the defense - had been raised on direct appeal, so the court did not err by finding it barred by res judicata. Petitioner claims res judicata should not apply because he now has evidence, in the form of affidavits from his trial attorneys and experts in the field of eyewitness identification, which claim the court's refusal to appoint experts prejudiced defense counsels' ability to present an effective defense. These affidavits are not "evidence" of trial counsel's ineffectiveness.
A viable claim of ineffective assistance of counsel must show that counsel's performance fell below an objective standard of reasonable representation. See State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus. Petitioner's counsel did ask the court to appoint experts, and nothing in the petition complains that counsel should have done something more to secure the experts. The affidavits themselves simply discuss trial counsel's belief that they could have presented a better defense with experts, but they do not criticize counsel's performance. Consequently, petitioner cannot show counsel's performance fell below an objective standard of reasonable performance. The second assignment of error is overruled.
The third assignment of error contains a mishmash of complaints. Although the assignment literally complains The trial court erred in dismissing Mr. Broom's claims of ineffective assistance of counsel during both phases of his capital trials the text of the argument has little to do with ineffective assistance of counsel claims. Petitioner variously complains about the court's refusal to appoint expert witnesses in eyewitness identifications; the court's refusal to grant him a continuance before trial and between the guilt penalty phases of the trial; and defense counsel's decision to ask petitioner's father about petitioner's prior criminal record, thus minimizing the effect of petitioner's mitigation evidence.
The court did not err by finding all these claims barred by res judicata since they were either raised on direct appeal or could have been raised on direct appeal. Perry supra. In our discussion to the preceding assignment of error, we discussed how petitioner could not transform previously adjudicated claims into claims of ineffective assistance of counsel solely for the purpose of labeling them new claims under R.C. 2953.21. The claims relating to the court's refusal to appoint expert witnesses in eyewitness identifications are summarily overruled.
The court's refusal to grant a pretrial continuance has been fully litigated. In our decision in Broom, we found the court did not abuse its discretion...
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