State v. Thomas, 2006 Ohio 6588 (Ohio App. 12/14/2006)
| Decision Date | 14 December 2006 |
| Docket Number | No. 87666.,87666. |
| Citation | 2006 Ohio 6588 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Joseph Thomas, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
William D. Mason, Cuyahoga County Prosecutor, By: T. Allan Regas, Assistant Prosecuting Attorney, The Justice Center, 1200 Ontario Street, Cleveland, Ohio 44113, Attorneys for Appellee.
Joseph Thomas, Pro Se, Inmate #460-830, Trumball Correctional Institution, P.O. Box 901, Leavittsburg, Ohio 44430, Attorney for Appellant.
Before:
JOURNAL ENTRY AND OPINION
{¶ 1} In the case at bar, Defendant-Appellant Joseph Thomas (aka Abdullah Yusuf), appeals from an order of the Cuyahoga County Court of Common Pleas ("the trial court") denying his motion for postconviction relief filed pursuant to R.C. 2953.21. For the reasons set forth below, we affirm.
{¶ 2} The proceedings below originate from Thomas's underlying criminal convictions for robbery, failure to comply with an order of a police officer, escape, obstruction of official business and receiving stolen property. This court has once detailed the underlying factual background of this case in State v. Thomas, Cuyahoga App. No. 84728, 2005-Ohio-1840, ("State v. Thomas I") as follows:
On August 4, 2003, defendant was indicted pursuant to a five-count indictment in connection with the theft of a vehicle belonging to Denise Drenski. In Count One, defendant was charged with aggravated robbery with a notice of prior conviction and a repeat violent offender specification. In Count Two, defendant was charged with failure to comply with the order of a police officer. Counts Three and Four charged him with escape and obstructing official business, respectively, and Count Five charged him with receiving stolen property. Defendant pled not guilty and the matter proceeded to a jury trial on December 8 2003. As trial commenced the state amended the aggravated robbery charge to robbery and the court permitted the defense to bifurcate the specifications.
Denise Drenski testified that, at approximately 8:30 a.m. on June 25, 2003, she stopped at a pay phone at West 117th Street and Weston to call her boyfriend and let him know that she was on her way to his apartment. As she stood at the pay phone, defendant approached from the rear, struck her in the area of her lower neck and upper back. Drenski fell to the ground, striking her knee. Defendant got into her vehicle and looked directly at Drenski as he fled. Drenski stated that she clearly observed defendant, and noticed that he was wearing a green shirt and baseball cap.
Drenski further testified that she called police from the pay phone and described her assailant, the car, and the direction in which he fled. She then walked the remainder of the distance to her boyfriend's house. Approximately twenty minutes later, the police informed her that they stopped a man driving her car in the area of West 76th Street and Colgate. Drenski went to the area and identified defendant as her assailant. According to Drenski, defendant was wearing the same clothing she had observed earlier and she was positive that he was the attacker.
The police officers at the scene recovered Drenski's credit cards from defendant's pocket, but other items were missing from the car, including Drenski's portable DVD player, purse, cell phone and wallet.
On cross-examination, Drenski admitted that she did not go to the hospital for her injuries.
Cleveland Police Officer Annette Godfrey testified that she responded to a radio broadcast concerning the incident. According to Godfrey, Drenski was upset and crying but provided a description of the assailant, including his clothing.
Cleveland Police Officer Donald Wellinger testified that he also spoke with Drenski and obtained a description of her car and its license plate number. At approximately 9:20 a.m., he observed the car proceeding northbound on West 65th Street. He activated his overhead lights and siren to stop the vehicle. The driver sped up, however, driving through stop signs and traffic lights. Wellinger and his partner continued to follow the vehicle until it ultimately crashed into a pole at West 76th Street and Elton. Drenski identified the driver as her assailant, and the officers then took him to the hospital. At this time, his hands were cuffed behind his back. Later, as they proceeded to the Justice Center, Wellinger noted that defendant was now handcuffed with his hands in the front of his body. As Wellinger opened the car door for defendant, he fled. The officers apprehended him in the parking lot of the Justice Center. Later during booking, defendant gave the officer incorrect names and dates of birth.
Cleveland Police Officer Albert Scott also testified that defendant did not stop when the officers activated their lights and siren, and also stated that he had difficulty handcuffing defendant because defendant continued to be uncooperative. As Scott struggled with defendant, Drenski's credit cards fell to the ground. Scott also testified that, after he read defendant his rights, defendant stated that he had taken the car because he did not have bus fare.
Defendant was subsequently convicted of all charges and sentenced to a total of eleven years.
{¶ 3} In State v. Thomas I, this court reversed Thomas's conviction for receiving stolen property, finding that this count, which the state proved by establishing that Thomas stole certain items of personal property from the victim's car, was not separately punishable apart from the robbery count. Id. at 29. We affirmed the judgment in all other respects and remanded the case for resentencing. Id. The trial court subsequently re-imposed a sentence of eleven years imprisonment.
{¶ 4} On September 14, 2004, Thomas filed a pro se "Petition to Vacate or Set Aside Judgment Conviction or Sentence," in which he argued that the state prejudicially failed to disclose a statement made by the victim that was contained in the police report of his crime. In relevant part, he asserted that, while the victim testified at trial that she sustained injury in the form of upper back or neck soreness and a scrape on her hand or knee as a result of Thomas violently pushing her to the ground to gain access to her car, she told an interviewing police officer that she was not injured as a result of his actions. As such, Thomas asserted that this exculpatory or impeaching police report narrative account would have been used by defense counsel to discredit the victim's testimony and the jury would have necessarily come back with a "not guilty" verdict on the robbery count. The trial court denied the motion without a hearing or opinion. The merits of this motion are the subject of this appeal.
{¶ 5} Thomas then appealed that decision to this court, and we dismissed it on September 15, 2005, finding that the trial court was statutorily required to issue findings of fact and conclusions of law in disposing of the motion. See R.C. 2953.21(C) and (G); State v. Thomas, Cuyahoga App. No. 85375, 2005-Ohio-4830 ("State v. Thomas II"). Since the trial court did not, this court had no final appealable order to review. Id. Thomas then filed an application in this court for a writ of mandamus to compel the trial court to issue the required findings of fact and conclusions of law, and the trial court did file appropriate findings of fact and conclusions of law on January 4, 2006. See State v. Thomas, Cuyahoga App. No. 87311, 2006-Ohio-690 ("State v. Thomas III"). Thomas then filed the instant appeal on January 20, 2006. This court subsequently dismissed Thomas's application for a writ of mandamus on February 15, 2006. See State v. Thomas III.
{¶ 6} Here, Thomas appeals the trial court's dismissal of his September 14 2004, motion for postconviction relief. Because the trial court ultimately did issue findings of fact and conclusions of law, we may now decide the merits of Thomas's assigned errors. He asserts three assignments of error, which we review in order.
{¶ 7} First, we find it useful to describe the nature of the right to postconviction relief in some detail. R.C. 2953.21(A) states, in part, as follows:
(1) Any person who has been convicted of a criminal offense or adjudicated a delinquent child and who claims that there was such a denial or infringement of the person's rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution [**6] of the United States may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief.
{¶ 8} A postconviction proceeding is a collateral civil attack on a criminal conviction. State v. Calhoun (1999), 86 Ohio St.3d 279, 281, 1999-Ohio-102, 714 N.E.2d 905. In order to obtain postconviction relief, a petitioner must show that "there was such a denial or infringement of the person's rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States [.]" R.C. 2953.21; State v. Watson (1998), 126 Ohio App.3d 316, 323, 710 N.E.2d 340. Under R.C. 2953.21, a petitioner seeking postconviction relief is not automatically entitled to an evidentiary hearing. Calhoun, 86 Ohio St.3d at 282, 714 N.E.2d 905. Significantly, the Ohio Supreme Court has held that proper basis for dismissing a petition for postconviction relief without holding an evidentiary hearing include: 1) the failure of the petitioner to set forth sufficient operative facts to establish substantive grounds for relief, and 2) the operation of res judicata to bar the constitutional claims raised in the petition. Calhoun, 86 Ohio St.3d at paragraph two of the syllabus; State v. Lentz (1994), 70...
To continue reading
Request your trial
-
State v. Williams
...trial court to adopt, in verbatim form, findings of fact and conclusionsof law which are submitted by the state." State v. Thomas, Cuyahoga App. No. 87666, 2006 Ohio 6588, citing State v. Powell (1993), 90 Ohio App.3d 260, 263, 629 N.E.2d 13; State v. Sowell (1991), 73 Ohio App.3d 672, 676,......