State v. Swortcheck, No. 68004

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtPER CURIAM
Citation101 Ohio App.3d 770,656 N.E.2d 732
Decision Date01 May 1995
Docket NumberNo. 68004
PartiesThe STATE of Ohio, Appellee, v. SWORTCHECK, Appellant.

Page 770

101 Ohio App.3d 770
656 N.E.2d 732
The STATE of Ohio, Appellee,
v.
SWORTCHECK, Appellant.
No. 68004.
Court of Appeals of Ohio,
Eighth District, Cuyahoga County.
Decided May 1, 1995.

[656 N.E.2d 733] Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and George J. Sadd, Assistant Prosecuting Attorney, Cleveland, for appellee.

Paul Mancino, Jr., Cleveland, for appellant.

PER CURIAM.

This appeal was filed and briefed as an accelerated appeal pursuant to Local App.R. 25.

John Swortcheck, defendant-appellant, appeals the trial court's dismissal of his petition for postconviction relief. Swortcheck assigns the following errors for our review:

"I. The defendant was denied due process of law when the court ordered a hearing in this case and then, without notice, granted a motion to dismiss.

"II. The defendant was denied due process of law when the court disposed of the petition for post-conviction relief without an evidentiary hearing.

"III. The defendant was denied due process of law when he was not awarded a new trial by reason of ineffective assistance of counsel."

For the reasons set forth below, we reverse the decision of the trial court.

Swortcheck was convicted of two counts of rape and one count of kidnapping. He filed a petition for postconviction relief and alleged the denial of effective assistance of counsel because his trial counsel failed to use material witnesses available to him for trial. In support of the petition, Swortcheck provided three affidavits.

Michelle Ettinger and Phyllis McDonald averred the following: Both of them were employed at Duke's Bar on West 130th Street in Cleveland, Ohio at the time of the alleged rape and kidnapping. After the incident was alleged to have taken place, Georgia Ollie, who was a regular patron, came into Duke's Bar. Ollie told them she and another woman had gone for a ride with Swortcheck in his car

Page 772

because she wanted him to take her to buy some cocaine and go home with her. As they were riding, Ollie had a fight with the other woman, and Swortcheck ordered her out of his car. Two weeks later, Ollie came back into the bar, told them she was angry at Swortcheck for rejecting her and made up the rape claim to get revenge.

Swortcheck averred the following: He had told his trial counsel, Michael J. Molnar, about the two witnesses, Ettinger and McDonald. He had told Molnar the substance of their testimony, but Molnar did not take any action to have them testify at trial. During the trial, McDonald showed up in the courtroom, but Molnar refused to consider using her as a witness.

The state filed a motion to dismiss the petition for postconviction relief. In support of the motion to dismiss, the state provided the affidavit of Michael J. Molnar. Molnar averred the...

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59 practice notes
  • State v. Wiley Davis, 98-LW-4773
    • United States
    • United States Court of Appeals (Ohio)
    • October 8, 1998
    ...to conduct an evidentiary hearing on the matter. In his first assigned error, appellant, in reliance on State v. Swortcheck (1995), 101 Ohio App.3d 770, contends that the affidavits submitted to support his claims offered prima facie evidence that his trial counsel was ineffective at the mi......
  • State v. Wynn, No. 73805.
    • United States
    • United States Court of Appeals (Ohio)
    • December 21, 1998
    ...a hearing based upon the petition, the supporting affidavits, and the files and records of the case. State v. Swortcheck (1995), 101 Ohio App.3d 770, 656 N.E.2d 732; State v. Strutton (1988), 62 Ohio App.3d 248, 575 N.E.2d 466. This court in Swortcheck stated at 772-773, 656 N.E.2d at "......
  • State v. William H. Ashley, 00-LW-2908
    • United States
    • United States Court of Appeals (Ohio)
    • June 14, 2000
    ...that would warrant a hearing. See State v. Lawson (1995), 103 Ohio App.3d 307, 311, 659 N.E.2d 362, 365; State v. Swortcheck (1995), 101 Ohio App.3d 770, 772, 656 N.E.2d 732, 733; State v. DePew (1994), 97 Ohio App.3d 111, 113, 646 N.E.2d 250, 251. Thus, the burden rests on appellant to sho......
  • State v. George Akers, 98-LW-1045
    • United States
    • United States Court of Appeals (Ohio)
    • February 2, 1998
    ...an evidentiary hearing, the trial court must assume as true any affidavits submitted by the petitioner. In State v. Swortcheck (1995), 101 Ohio App.3d 770, 772, 656 N.E.2d 732, 733, the court wrote in pertinent part as follows: "When determining whether there are substantive for postco......
  • Request a trial to view additional results
59 cases
  • State v. Wiley Davis, 98-LW-4773
    • United States
    • United States Court of Appeals (Ohio)
    • October 8, 1998
    ...to conduct an evidentiary hearing on the matter. In his first assigned error, appellant, in reliance on State v. Swortcheck (1995), 101 Ohio App.3d 770, contends that the affidavits submitted to support his claims offered prima facie evidence that his trial counsel was ineffective at the mi......
  • State v. Wynn, No. 73805.
    • United States
    • United States Court of Appeals (Ohio)
    • December 21, 1998
    ...a hearing based upon the petition, the supporting affidavits, and the files and records of the case. State v. Swortcheck (1995), 101 Ohio App.3d 770, 656 N.E.2d 732; State v. Strutton (1988), 62 Ohio App.3d 248, 575 N.E.2d 466. This court in Swortcheck stated at 772-773, 656 N.E.2d at "......
  • State v. William H. Ashley, 00-LW-2908
    • United States
    • United States Court of Appeals (Ohio)
    • June 14, 2000
    ...that would warrant a hearing. See State v. Lawson (1995), 103 Ohio App.3d 307, 311, 659 N.E.2d 362, 365; State v. Swortcheck (1995), 101 Ohio App.3d 770, 772, 656 N.E.2d 732, 733; State v. DePew (1994), 97 Ohio App.3d 111, 113, 646 N.E.2d 250, 251. Thus, the burden rests on appellant to sho......
  • State v. George Akers, 98-LW-1045
    • United States
    • United States Court of Appeals (Ohio)
    • February 2, 1998
    ...an evidentiary hearing, the trial court must assume as true any affidavits submitted by the petitioner. In State v. Swortcheck (1995), 101 Ohio App.3d 770, 772, 656 N.E.2d 732, 733, the court wrote in pertinent part as follows: "When determining whether there are substantive for postco......
  • Request a trial to view additional results

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