State v. Scott, No. 55312

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtDYKE
Citation63 Ohio App.3d 304,578 N.E.2d 841
Docket NumberNo. 55312
Decision Date16 June 1989
PartiesThe STATE of Ohio, Appellee, v. SCOTT, Appellant. *

Page 304

63 Ohio App.3d 304
578 N.E.2d 841
The STATE of Ohio, Appellee,
v.
SCOTT, Appellant. *
No. 55312.
Court of Appeals of Ohio, Eighth District, Cuyahoga County.
Decided June 16, 1989.

Page 306

Syllabus by the Court

1. A hearing on a petition for post-conviction relief should have been held when the affidavit contained sufficient operative facts to show substantive grounds for relief. The affidavit contained evidence of the availability of mitigating evidence [578 N.E.2d 843] and the failure of trial counsel to attempt to obtain mitigating evidence.

2. A petition for post-conviction relief cannot be used to raise a claim of ineffective assistance of appellate counsel on direct appeal.

John T. Corrigan, Pros. Atty., and George Sadd, Asst. Pros. Atty., Cleveland, for appellee.

Randall M. Dana, Ohio Public Defender, and Joann Bour-Stokes, Asst. Public Defender, Columbus, for appellant.

DYKE, Judge.

Appellant, Jay D. Scott, was convicted of aggravated murder, with specifications, 1 and aggravated robbery and sentenced to death. On appeal by new

Page 307

counsel his conviction was affirmed by this court and the Ohio Supreme Court and his petition for a writ of certiorari was denied. 2 New appellate counsel filed a petition for post-conviction relief and a motion to have the trial judge recuse himself.

The trial judge denied the motion to recuse. The trial court dismissed the petition without a hearing and granted the state's motion to dismiss.

Assignment of Error No. I

"The trial court erred in summarily dismissing appellant Scott's post-conviction petition without according him an evidentiary hearing. In addition, the resulting findings of fact and conclusions of law issued by the court failed to comply with the requirements of Ohio law."

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. Kapper (1983), 5 Ohio St.3d 36, 38, 5 OBR 94, 96, 448 N.E.2d 823, 825. The trial court was required to review "the petition and the files and records of the case." R.C. 2953.21(C) and (E). Appellant's motion to transfer the portion of the record that was with the court of appeals to the trial court was granted on January 25, 1988. The petition was dismissed on January 28, 1988. A motion to transfer the portion of the record lodged with the Ohio Supreme Court was granted after the motion to dismiss the petition was granted. The findings of fact and conclusions of law were five pages long and did not specify the portions of the files and record which established the bar of res judicata.

The trial judge stated, "it is specifically concluded that after a review of all relevant files and documents pertaining to the instant proceedings that no substantial grounds for relief exist * * *." (Emphasis added.) However, that statement referred only to the issue of ineffective assistance of appellate counsel. Limiting review to the portion pertinent to an issue is proper. The trial judge stated: "The pleadings, files, and other records in the present case

Page 308

demonstrate that there has been no denial or infringement of constitutional or statutory rights * * * [and] no substantial grounds for relief. * * * "

The records transferred from the Ohio Supreme Court consisted of the proceedings before that court. Appellant's brief at 2. The petition is directed to the trial and the direct appeal and the records pertaining to those levels were transferred to the trial court on January 25, 1988. The trial judge concluded that eight of the nine errors claimed were, or could have been, raised in [578 N.E.2d 844] the direct appeal and were barred by res judicata. He concluded that the last claim was not properly raised in a post-conviction petition.

Those were decisions made as a matter of law and conceivably made in the three-day interval between the transfer and the granting of the motion to dismiss. There is no indication that the review was insufficient.

A three-sentence paragraph that failed to cite the record still constituted sufficient findings of fact and conclusions of law in State, ex rel. Carrion, v. Harris (1988), 40 Ohio St.3d 19, 530 N.E.2d 1330.

As stated in the discussion of each assignment of error, no hearing was required except on the claim of ineffective assistance of trial counsel during the mitigation phase. Assignment of Error No. I is overruled in part and sustained in part.

Assignment of Error No. II

"Appellant Scott was denied the effective assistance of counsel at his capital trial in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution."

This assignment of error is well taken, in part.

Appellant presented several affidavits from his friends and family. The conclusions of law stated that the claims could have been determined without evidence dehors the record.

Most of the claims argued by appellant could have been raised on appeal and are barred by res judicata. 3 However, the failure to present mitigation evidence could not have been determined on direct appeal because the evidence of the lack of an effort to contact witnesses and the availability of mitigation evidence was not present until the affidavits were made a part of the petition.

Page 309

Appellant presented several affidavits from family members which stated that they were never contacted by trial counsel, that they were willing to testify and what they would have testified. In order to show the ineffective assistance of counsel at the guilt phase appellant relied, in part, on these affidavits.

Appellant's sister (paragraphs 5 and 6 of exhibit J) and the mother of his son (paragraph 5 of exhibit N) stated that appellant told them co-defendant Edward O'Neal killed the victim. A friend of appellant's family (paragraphs 6 and 7 of exhibit M) stated that appellant told him he was framed. Appellant's brother (paragraph 4 of exhibit K) stated that "others were involved." None of this information is relevant.

However, appellant's other sister (paragraphs 2, 3 and 4 of exhibit I) stated that O'Neal admitted in her presence that O'Neal killed the victim. O'Neal testified at trial that appellant shot the victim and that O'Neal was not armed.

Ricky Tramble testified that on the day Vinnie Prince was killed he was with appellant and appellant's co-defendants, Edward O'Neal, Michael Streeter and Danny Jones. He stated that appellant said, "Well, I did what I had to do. She shouldn't have made me move like that. Fuck it. It's over with * * *. These niggers don't know what they're doing. * * * [T]hey get to crying about this and crying about that. This is what I do." Appellant claimed to be "a stick-up man." O'Neal told the witness the next day that they were involved in the incident, including the shooting.

Jones gave a written statement which admitted that he, O'Neal, Streeter and appellant were driving around looking for a place to rob when they chose the victim's store. Appellant asked for "front money" to use while he pretended to buy. O'Neal agreed to go with him. Appellant had a .38 caliber pistol and O'Neal had a .25 caliber [578 N.E.2d 845] automatic handgun. Jones pulled the car around the corner. O'Neal later told Jones that appellant "shot her * * * cause she went for her shit [gun]." Jones asked appellant if he had killed her and Jones stated that appellant replied, "naw, she was still standing up when he ran out the door." At trial Jones denied that they had intended to rob the victim.

O'Neal stated in a written statement that he and appellant went into the store to get appellant food but appellant pulled out a pistol and told the victim to "freeze." She began to "holler" and "yell" and appellant fired at her and struck her. He said that he was unarmed but Streeter had a .25 caliber

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weapon. He admitted discussing the incident with Tramble. 4

O'Neal testified that appellant shot the victim. Appellant's sister would have testified that O'Neal admitted to the shooting. However, Tramble testified that appellant said he did what he had to do and she shouldn't have made him move like that. A hearing on the claim of ineffective assistance of counsel during the guilt phase was not necessary when the evidentiary documents failed to show that the petitioner is entitled to relief.

Appellant stated that the failure to investigate and present evidence during the mitigation phase and the failure to object to the erroneous use of a firearm specification as an aggravating circumstance were each ineffective assistance of counsel which required that the conviction be vacated as well as the sentence.

In the case cited, State v. Johnson (1986), 24 Ohio St.3d 87, 24 OBR 282, 494 N.E.2d 1061, the court vacated the conviction because of a failure to grant a continuance. Id. at 94, 24 OBR at 288, 494 N.E.2d at 1067. The failure to investigate and present evidence and the failure to object were separately found to each be ineffective assistance of counsel at the mitigation...

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80 practice notes
  • Williams v. Anderson, No. 04-3515.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 28, 2006
    ...based solely on evidence in the record because the record necessarily does not contain evidence of prejudice. See State v. Scott, 63 Ohio App.3d 304, 578 N.E.2d 841, 844 (Ohio Ct.App.1989) ("[T]he failure to present mitigation evidence could not have been determined on direct appeal because......
  • Suntoke v. Warden, Case No. 2:15-cv-1354
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • August 2, 2018
    ...3d 83, 83-84 (2001); State v, Hartman, 93 Ohio St. 3d 274, 299 (2001); State v. Keith, 79 Ohio St. 3d 514, 536 (1997); State v. Scott, 63 Ohio App. 3d 304, 308 (1989); State v. Smith, 17 Ohio St. 3d 98, 101, n.1 (1985). Conversely, constitutional claims including ineffective assistance of t......
  • State v. Madrigal, No. 97-98.
    • United States
    • United States State Supreme Court of Ohio
    • January 5, 2000
    ...considered on a direct appeal. See State v. Keith (1997), 79 Ohio St.3d 514, 536, 684 N.E.2d 47, 67; State v. Scott (1989), 63 Ohio App.3d 304, 308, 578 N.E.2d 841, 844 (claim of failure to present mitigating evidence is properly considered in a post-conviction proceeding because evidence i......
  • Skatzes v. Warden, Case No. 3:09-cv-289
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • June 1, 2017
    ...St. 3d 83 (2001); State v. Hartman, 93 Ohio St. 3d 274, 299 (2001); State v. Keith, 79 Ohio St. 3d 514, 536 (1997); State v. Scott, 63 Ohio App. 3d 304, 308 (1989); State v. Smith, 17 Ohio St. 3d 98, 101, fn. 1 (1985). Conversely, constitutional claims including ineffective assistance of tr......
  • Request a trial to view additional results
80 cases
  • Williams v. Anderson, No. 04-3515.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 28, 2006
    ...based solely on evidence in the record because the record necessarily does not contain evidence of prejudice. See State v. Scott, 63 Ohio App.3d 304, 578 N.E.2d 841, 844 (Ohio Ct.App.1989) ("[T]he failure to present mitigation evidence could not have been determined on direct appeal because......
  • Suntoke v. Warden, Case No. 2:15-cv-1354
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • August 2, 2018
    ...3d 83, 83-84 (2001); State v, Hartman, 93 Ohio St. 3d 274, 299 (2001); State v. Keith, 79 Ohio St. 3d 514, 536 (1997); State v. Scott, 63 Ohio App. 3d 304, 308 (1989); State v. Smith, 17 Ohio St. 3d 98, 101, n.1 (1985). Conversely, constitutional claims including ineffective assistance of t......
  • State v. Madrigal, No. 97-98.
    • United States
    • United States State Supreme Court of Ohio
    • January 5, 2000
    ...considered on a direct appeal. See State v. Keith (1997), 79 Ohio St.3d 514, 536, 684 N.E.2d 47, 67; State v. Scott (1989), 63 Ohio App.3d 304, 308, 578 N.E.2d 841, 844 (claim of failure to present mitigating evidence is properly considered in a post-conviction proceeding because evidence i......
  • Skatzes v. Warden, Case No. 3:09-cv-289
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • June 1, 2017
    ...St. 3d 83 (2001); State v. Hartman, 93 Ohio St. 3d 274, 299 (2001); State v. Keith, 79 Ohio St. 3d 514, 536 (1997); State v. Scott, 63 Ohio App. 3d 304, 308 (1989); State v. Smith, 17 Ohio St. 3d 98, 101, fn. 1 (1985). Conversely, constitutional claims including ineffective assistance of tr......
  • Request a trial to view additional results

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