State v. Sowell

• Citation: 598 N.E.2d 136,73 Ohio App.3d 672
• Decision Date: 26 June 1991
• Docket Number: No. C-900413,C-900413
• Parties: The STATE of Ohio, Appellee, v. SOWELL, Appellant. *
• Court: United States Court of Appeals (Ohio)

Page 672

73 Ohio App.3d 672

598 N.E.2d 136

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

No. C-900413.

Court of Appeals of Ohio, First District, Hamilton County.

Decided June 26, 1991.

Arthur M. Ney, Jr., Pros. Atty., and Christian J. Schaefer, Cincinnati, for appellee.

Randall M. Dana, Ohio Public Defender, Randall Porter and Stephen Delbet, Columbus, for appellant.

PER CURIAM.

Petitioner-appellant Billy Joe Sowell has taken the instant appeal from the entry of summary judgment in favor of the state on his petition for postconviction relief. On appeal, Sowell advances seven assignments of error.

The genesis of this action was Sowell's indictment in 1983 on charges of aggravated murder and attempted aggravated murder in connection with the death of Calvert Graham and the shooting of Pamela Billups. Sowell waived his right to a jury trial, electing instead to be tried to a three-judge panel. The panel found Sowell guilty as charged, and imposed, with respect to the aggravated murder charge, a sentence of death. Sowell's convictions were upheld on direct appeal to this court, State v. Sowell (Aug. 20, 1986), Hamilton App. No. C-830355, unreported, 1986 WL 9082, and to the Ohio Supreme Court, State v. Sowell (1988), 39 Ohio St.3d 322, 530 N.E.2d 1294, and the United States Supreme Court denied Sowell's petition for a writ of certiorari, Sowell v. Ohio (1989), 490 U.S. 1096, 109 S.Ct. 2444, 104 L.Ed.2d 999.

In December 1989, Sowell filed with the common pleas court a petition, pursuant to R.C. 2953.21, to vacate or set aside his convictions, in which he presented forty-one causes of action. The common pleas court, upon the state's motion, entered summary judgment for the state on Sowell's petition, and this appeal ensued.

I

We address first Sowell's fourth assignment of error in which he challenges the adequacy of the common pleas court's findings of fact and conclusions of law. This challenge is untenable.

R.C. 2953.21(C) requires the common pleas court, upon dismissal of a petition for postconviction relief, to make and file findings of fact and conclusions of law setting forth its findings on each issue presented and a substantive basis for its disposition of each claim for relief advanced in the petition. State v. Lester (1975), 41 Ohio St.2d 51, 70 O.O.2d 150, 322 N.E.2d 656. The purpose of requiring findings of fact and conclusions of law is to apprise the petitioner of the basis for the common pleas court's disposition and to facilitate appropriate and meaningful appellate review. State ex rel. Carrion v. Harris (1988), 40 Ohio St.3d 19, 530 N.E.2d 1330. The sufficiency of the findings of fact and conclusions of law issued upon dismissal of a post-conviction petition may be assessed by reference to the purposes served by the R.C. 2953.21(C) requirement. Harris, supra; State v. Poindexter (Mar. 6, 1991), Hamilton App. No. C-890734, unreported, 1991 WL 30613.

We reject at the outset Sowell's contention that the common pleas court's adoption of the findings of fact and conclusions of law submitted by the state effectively deprived him of a meaningful review of his petition by the common pleas court. As we determined in Poindexter, supra, this procedure does not, by itself, constitute error, and we find no basis on which to conclude that Sowell was thereby prejudiced.

In the findings of fact and conclusions of law filed upon the dismissal of Sowell's petition for postconviction relief, the common pleas court addressed in order each cause of action presented in the petition and set forth a factual and substantive basis for its disposition. With respect to those causes of action found to be barred by res judicata, the court substantially complied with the requirement of specifying, in the appropriate instance, those portions of the record that established the res judicata bar. See Lester, supra; Poindexter, supra. Upon our determination that the findings of fact and conclusions of law issued below were sufficient to apprise Sowell and this court of the basis for dismissal and thus satisfied the policy considerations underlying the R.C. 2953.21(C) requirement, we overrule Sowell's fourth assignment of error.

II

Sowell, in his fifth assignment of error, assails the common pleas court's disposition of the challenge presented in his tenth cause of action to the prosecution's alleged suppression of evidence favorable to the defense. We find no merit to this challenge.

The United States Supreme Court, in Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, held that the failure of the prosecution to disclose upon request evidence favorable to the accused constitutes a violation of the Fourteenth Amendment's due-process guarantee of a fair trial when "the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87, 83 S.Ct. at 1197, 10 L.Ed. at 218. Undisclosed evidence is "material" for purposes of the Brady rule "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley (1985), 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481, 494; see State v. Wickline (1990), 50 Ohio St.3d 114, 552 N.E.2d 913.

Sowell asserted in his tenth cause of action that he was denied his constitutional right to a fair trial by the prosecution's failure to disclose, pursuant to his discovery request, evidence in the form of testimony by his neighbor, Jerrell Perrin. In support of this contention, Sowell offered the affidavit of Perrin, who attested to incidents that reflected favorably on Sowell's character and to the community's perception of prosecution witness Pamela Billups as dishonest because she was a prostitute who "rolled" her customers. Perrin stated that, on the night in question, she was drawn to the hallway of her apartment building by a "ruckus," and she witnessed a vocal exchange between Sowell, who stood outside Calvert Graham's apartment requesting the return of his money, and Billups, who loudly responded with profanity. Perrin retreated into her apartment, then twenty to thirty minutes later heard what she perceived to be a car backfiring. She again emerged from her apartment to see Sowell returning to his apartment. Perrin averred that she related her observations to the police and that she received a subpoena from the prosecution to testify at Sowell's trial but was not called to testify. She further averred that neither defense counsel nor their investigators contacted her.

The state asserts that Sowell has failed to prove the threshold issue of nondisclosure when the evidentiary material submitted in support of his tenth cause of action does not demonstrate that the defense did not know at the time of trial of Perrin's proposed testimony and does not override the presumption of disclosure raised by the issuance to Perrin of a subpoena and by defense counsel's presence at a pretrial discovery conference at which, the state argues, the defense must surely have learned that Perrin was a prospective witness. We are unpersuaded.

The issuance of a subpoena or the disclosure of Perrin as a prospective witness at a pretrial discovery conference would constitute sufficient disclosure only if the substance of Perrin's statement or testimony was provided along with her name and address or if her testimony was a matter of public record. See State v. Johnston (1988), 39 Ohio St.3d 48, 61, 529 N.E.2d 898, 912, fn. 22. In the absence of evidence to the contrary, Perrin's affidavit raises a reasonable inference of nondisclosure.

We find, however, that Perrin's proposed testimony is, in substance, merely cumulative of the evidence presented during both the guilt and penalty phases of Sowell's trial. We are unable to conclude from the record before us that Perrin's evidence was "material" in the sense that, had it been disclosed to the defense, a reasonable probability existed that the result of the trial would have been different. We, therefore, overrule the fifth assignment of error.

III

In his seventh assignment of error, Sowell challenges the common pleas court's determination that it lacked jurisdiction to entertain the claim advanced in his twenty-sixth cause of action, in which he asserts that he was denied the effective assistance of appellate counsel. This challenge is feckless.

In State v. Rone (Aug. 31, 1982), Hamilton App. No. C-820640, unreported, we held that a claim of ineffective assistance of counsel relating to proceedings on direct appeal from a judgment of conviction may not be entertained by a common pleas court upon a petition for postconviction relief. In Poindexter, supra, we examined our holding in Rone, in light of the Ohio Supreme Court's decision in State v. Howard (1989), 42 Ohio St.3d 18, 537 N.E.2d 188, certiorari denied (1989), 493 U.S. 873, 110 S.Ct. 203, 107 L.Ed.2d 157, and found that the decision in Howard did not mandate a contrary result. Therefore, on the authority of Rone, we overrule Sowell's seventh assignment of error.

IV

Sowell, in his sixth assignment of error, contests the common pleas court's disposition of his twenty-seventh and thirty-eighth causes of action in which he contends that defense counsel's performance at trial was so deficient that he was deprived of the effective assistance of trial counsel. This challenge is untenable.

The Ohio Supreme Court in State v. Lytle (1976), 48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623, proposed a two-step inquiry into the question of whether a defendant was deprived of the effective assistance of counsel:

"First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of...