State v. Timothy Hoffner
| Decision Date | 30 September 2002 |
| Docket Number | 02-LW-4052,L-01-1281 |
| Citation | 2002 Ohio 5201 |
| Parties | State of Ohio, Appellee v. Timothy Hoffner, Appellant Court of Appeals |
| Court | Ohio Court of Appeals |
Julia R. Bates, Lucas County Prosecuting Attorney, and Craig Pearson, Assistant Prosecuting Attorney, for appellee.
David Bodiker, Ohio Public Defender, and Richard J. Vickers Assistant State Public Defender, for appellant.
{¶1} This case is before us on appeal from the Lucas County Court of Common Pleas, which denied appellant's request for an evidentiary hearing and dismissed appellant's petition for postconviction relief. For the reasons that follow, we affirm the decision of the trial court.
{¶2} In 1995, a jury found appellant guilty of aggravated murder kidnaping, aggravated robbery, and forgery. These charges stem from the kidnaping and murder of Christopher Hammer. The jury recommended death, and the trial court subsequently filed a judgment entry sentencing appellant to death. Appellant appealed his conviction to this court, and we affirmed the trial court's judgment. The facts of this case are more fully set out in that decision. See State v. Hoffner (Mar. 23, 2001), Lucas App. No. L-95-181. In 1997, appellant filed his petition for postconviction relief which the trial court subsequently dismissed, finding that the majority of the claims in appellant's petition were barred by res judicata; the court found that other claims were not supported by evidence. Appellant now appeals, setting forth the following three assignments of error:
Assignment of Error No. I
{¶3} "The trial court erred in dismissing appellant's post-conviction petition where he presented sufficient operative facts to merit an evidentiary hearing and discovery."
{¶4} "Ohio post-conviction procedures neither afford an adequate corrective process nor comply with due process or equal protection under the Fourteenth Amendment."
{¶5} "The cumulative error of appellant's substantive claims merit reversal or remand for a proper postconviction process."
{¶6} The standard of review for a trial court's decision denying a petition for postconviction relief has been variously stated, ranging from the abuse of discretion standard, see State v. Lemaster (Sept. 28, 1999) Pickaway App. No. 98CA46, appeal dismissed (2000), 87 Ohio St.3d 1490, to the de novo standard, see State v. Miller (Jan. 28, 2002), Ross App. No. 01CA2614. However, we agree with the Columbiana Court of Appeals, which recognized that decisions denying such petitions involve mixed questions of law and fact. See State v. Reynolds (Jan. 8, 2002), Columbiana App. No. 99-CO-48. We therefore review the trial court's decision on factual issues using a manifest weight standard of review, and we review de novo the trial court's decision on legal issues. Id.
{¶7} R.C. 2953.21(A)(1) provides for postconviction relief. That section states:
{¶8} that supports the claim.
{¶9} However, claims that were raised or could have been raised on direct appeal do not entitle a petitioner to postconviction relief because those claims are barred by the doctrine of res judicata. State v. Perry (1967), 10 Ohio St.2d 175, paragraphs eight and nine of the syllabus; State v. Szefcyk (1996), 77 Ohio St.3d 93, syllabus. Where a petitioner, represented by new counsel on appeal, alleges ineffective assistance of trial counsel, that petitioner is not entitled to postconviction relief unless he presents evidence dehors the record to show that trial counsel was ineffective. In other words, the petitioner must present evidence outside the record that could not have been raised on direct appeal of his conviction. In this regard, the Supreme Court of Ohio has stated:
{¶10} "Where a defendant, represented by new counsel upon direct appeal, fails to raise therein the issue of competent trial counsel and said issue could fairly have been determined without resort to evidence dehors the record, res judicata is a proper basis for dismissing defendant's petition for postconviction relief. ***." State v. Cole (1982), 2 Ohio St.3d 112, syllabus.
{¶11} Under the proper circumstances, a petitioner will be allowed an evidentiary hearing on the petition. According to R.C. 2953.21(C), a petitioner is entitled to a hearing when, upon review of the petition and the record, the trial court finds that there are "substantive grounds for relief."
{¶12} A petitioner alleging ineffective assistance of counsel will be entitled to a hearing only upon a showing of sufficient operative facts demonstrating: (1) that counsel was ineffective; and (2) that the petitioner was prejudiced by such ineffectiveness. State v. Jackson (1980), 64 Ohio St.2d 107, syllabus.
{¶13} The Supreme Court of Ohio has defined ineffective assistance as follows:
{¶14} "Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable
{¶15} representation and, in addition, prejudice arises from counsel's performance." State v. Bradley (1989), 42 Ohio St.3d 136, at paragraph two of the syllabus, certiorari denied (1990), 497 U.S. 1011, citing State v. Lytle (1976), 48 Ohio St.2d 391; Strickland v. Washington (1984), 466 U.S. 668.
{¶16} The court must defer to the strong presumption that counsel's performance falls within the wide range of reasonable professional performance. Bradley, 42 Ohio St.3d at 142. Even if counsel's performance falls outside the objective standard of reasonable representation, the court shall not reverse unless counsel's ineffectiveness resulted in prejudice. Id. In order to show prejudice warranting reversal, the defendant must show that there is a reasonable probability that, but for counsel's ineffectiveness, the outcome of the proceeding would have been different. Id., quoting Strickland, 466 U.S. at 694.
{¶17} In his first assignment of error, appellant contends: (1) that his trial counsel was ineffective in both the "trial" or "guilt" phase and in the penalty phase; (2) that appellant was denied his due process right to a "reliable capital sentencing proceeding"; and (3) that he was denied his due process right to a fair and impartial jury.
{¶18} Appellant contends that his trial counsel was ineffective in both phases of his capital trial. Appellant claims that counsel was ineffective in the trial phase in the following ways: (1) in not visiting him in the year before trial; (2)in conducting an inadequate investigation; (3) in not exploring whether "Miranda" issues were extant in appellant's interviews with the police;[1] (4) in making a short opening statement; (5) in causing appellant not to be present for the jury view or for deliberations; (6) in not pursuing the theory that appellant was an aider or abettor instead of the principal offender; (7) in making a plea offer without appellant's approval; and (8) in allowing appellant's prison records into the jury room during deliberations. Appellant contends that counsel was ineffective in the penalty phase in the following ways: (9) in saying in closing argument that counsel did not have sympathy for appellant and that counsel was "confus[ed]" and "repuls[ed]" by the crime; (10) in counseling appellant not to show emotion during the trial; and (11) in allowing the court, in response to the jurors' question, to define the term "preponderance" without also clarifying the correct burden of proof.
{¶19} First, appellant contends in claims (1), (2), (7), and (10) that counsel was ineffective in failing to visit him in jail, in failing to conduct an adequate investigation, in making a plea offer without appellant's approval, and in counseling appellant not to show emotion during the penalty phase. Appellant supports these claims with his own affidavit and with the affidavit of an expert -- Randall Porter, an attorney from the Ohio State Public Defender's Office specializing in death penalty cases. In addition to these two affidavits, appellant relies on the affidavit of a juror to support his contention that his counseled lack of emotion and the presence of the prison records in the jury room were prejudicial to him.
{¶20} The weight to be afforded affidavits in postconviction
{¶21} proceedings has been the subject of much discussion in Ohio law. The Supreme Court of Ohio recently held that a trial court need not accept as true all averments in affidavits filed in postconviction proceedings. State v. Calhoun (1999), 86 Ohio St.3d 279, 284. The Supreme Court stated:
{¶22} "[We] hold that in reviewing a petition for postconviction relief filed pursuant to R.C. 2953.21, a trial court should give due deference to affidavits sworn to under oath and filed in support of the petition, but may, in the sound exercise of discretion, judge their credibility in determining whether to accept the affidavits as true statements of fact." Id. The court also explained that, under appropriate circumstances, a trial court may deem affidavit testimony not to be credible "without first observing or...
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