State v. Wilson, Case No. 18CAA040035
| Decision Date | 20 December 2018 |
| Docket Number | Case No. 18CAA040035 |
| Citation | 2018 Ohio 5167 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. F. LEON WILSON Defendant-Appellant |
| Court | Ohio Court of Appeals |
JUDGES: Hon. W. Scott Gwin, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.
For Plaintiff-Appellee
DOUGLAS DUMOLT
Assistant Prosecuting Attorney
140 North Sandusky St., 3rd Floor
Box 8006
Delaware, OH 43015-8006
For Defendant-Appellant
DENNIS BELLI
Columbus, OH 43215-5785
{¶1} Appellant F. Leon Wilson ["Wilson"] appeals from the April 3, 2018 judgment entry of the Delaware County Court of Common Pleas overruling his petition for post-conviction relief.
{¶2} On July 17, 2015, the Delaware County Grand Jury indicted Wilson on three counts of gross sexual imposition in violation of R.C. 2907.05. Counts 1 and 2 pertained to E.C., four years old, and Count 3 pertained to K.P., seven years old. Each count included a school safety zone specification (R.C. 2941.143). The charges arose from separate incidents between Wilson and E.C. and Wilson and K.P. while at school. Wilson was their chess teacher.
{¶3} On April 9, 2015, E.C. told her parents her chess teacher touched her, demonstrating the touch by placing her hand on top of her clothes between her legs and moving her hand up and down. E.C. told her forensic interviewer the same story.
{¶4} Following Wilson's arrest, which was publicized in the press, K.P.'s father, asked K.P. if anything had happened to her since she had been a student in Wilson's chess class in February and March 2015. K.P. stated it happened once. K.P. told her forensic interviewer that Wilson asked her for permission to touch her vagina and when she gave him permission, he rubbed her vagina over her clothing.
{¶5} On August 31, 2015, Wilson filed a motion to sever Counts 1 and 2 from Count 3. A hearing was held on September 21, 2015. By judgment entry filed September 24, 2015, the trial court denied the motion.
{¶6} On December 5, 2015, Wilson filed a motion for competency hearings of E.C. and K.P. prior to either being permitted to testify. A hearing was held on January 4, 2016. The state indicated it would not be calling E.C. as a witness. The trial court conducted an examination of K.P. and determined K.P. to be competent to testify.
{¶7} On January 4, 2016, Wilson filed a motion to compel confrontation, objecting to the playing of E.C.'s videotaped forensic interview during the trial. A hearing was held on February 11, 2016.
{¶8} On January 21, 2016, Wilson filed a supplemental motion on the issuance of severance. By judgment entry filed February 22, 2016, the trial court again denied the motion to sever, and denied Wilson's motion to compel confrontation, finding E.C.'s out-of-court statements were admissible as pertaining to medical diagnosis or treatment.
{¶9} A jury trial commenced on February 23, 2016, but the jury could not reach a verdict on any of the counts and a mistrial was declared. Wilson did not object to the trial court's supplemental instruction referred to as a Howard charge. See State v. Howard, 42 Ohio St.3d 18, 537 N.E.2d 188(1998), paragraph two of the syllabus. Wilson did not object to the declaration of a mistrial because the jury was deadlocked. Thereafter, a different judge was assigned to the case.
{¶10} On May 27, 2016, Wilson reasserted his motion to exclude E.C.'s videotaped interview, claiming it violated his right to confrontation and it did not fit the medical diagnosis or treatment exception to the hearsay rule. Again, the trial court denied the motion.
{¶11} A second jury trial commenced on June 6, 2016. The jury found appellant guilty of Counts 1 and 3, and not guilty of Count 2. The jury also found the offenses were committed in a school safety zone.
{¶12} On June 24, 2016, Wilson filed a motion for judgment of acquittal and motion for new trial. By judgment entry filed July 21, 2016, the trial court denied the motions.
{¶13} By judgment entry filed August 2, 2016, the trial court sentenced Wilson to an aggregate term of eight and one-half years in prison. This Court affirmed Wilson's convictions and sentence. State v. Wilson, 5th Dist. Delaware No. 16-CAA-08-0035, 2017-Ohio-5724 ["Wilson, I"]. The Ohio Supreme Court declined to review Wilson's case. State v. Wilson, 151 Ohio St.3d 1511, 2018-Ohio-365, 90 N.E.3d 950.
{¶14} On October 2, 2017, Wilson filed an application to reopen his direct appeal alleging that his Appellate counsel was ineffective for failing to raise a number of specific arguments relating to trial counsel's alleged deficiencies. On January 19, 2018, this Court denied Wilson's application to reopen his direct appeal. On February 21, 2018, the Ohio Supreme Court declined to accept jurisdiction in this matter. State v. Wilson, 152 Ohio St.3d 1467, 2018-Ohio-1795, 97.N.E. 3d 502.
{¶15} On September 13, 2017, Wilson filed a Petition for Post-Conviction Relief ["PCR"]. In support of the motion, Wilson attached affidavits purportedly from several jurors who participated in his first trial that resulted in a mistrial. Additionally, he submitted affidavits from his trial counsels and their private investigators.
{¶16} In an entry filed April 3, 2018, the trial court denied the petition for post-conviction relief.
{¶17} "I. THE DISMISSAL OF THE PETITION FOR POST-CONVICTION RELIEF WITHOUT A HEARING VIOLATED R.C. 2953.21(D) AND DEPRIVED DEFENDANT-APPELLANT OF HIS RIGHT TO MEANINGFUL REVIEW OF HIS CONSTITUTIONAL CLAIMS FOR RELIEF.
{¶18}
Standard of Appellate Review - Post-conviction relief.
{¶20} A petition for post-conviction relief is a means to reach constitutional issues that would otherwise be impossible to reach because the evidence supporting those issues is not contained in the record of the petitioner's criminal conviction. State v. Murphy, 10th Dist. Franklin No. 00AP-233, 2000 WL 1877526(Dec. 26, 2000); Accord, State v. Zich, 6th Dist. Lucas No. L-15-1263, 2017-Ohio-414, ¶9. Although designed to address claimed constitutional violations, the post-conviction relief process is a civil collateral attack on a criminal judgment, not an appeal of that judgment. State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905(1999); State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67(1994). A petition for post-conviction relief, thus, does not provide a petitioner a second opportunity to litigate his or her conviction, nor is the petitioner automatically entitled to an evidentiary hearing on the petition. State v. Jackson, 64 Ohio St.2d 107, 110, 413 N.E.2d 819(1980). State v. Lewis, 5th Dist. Stark No. 2007CA00358, 2008-Ohio-3113 at ¶ 8.
{¶21} In post-conviction cases, a trial court has a gatekeeping role as to whether a defendant will receive a hearing. In State v. Calhoun, the Ohio Supreme Court held that a trial court could dismiss a petition for post-conviction relief without a hearing "where the petition, the supporting affidavits, the documentary evidence, the files, and the records do not demonstrate that petitioner set forth sufficient operative facts to establish substantive grounds for relief." 86 Ohio St.3d 279, 714 N.E.2d 905(1999), paragraph two of the syllabus.
{¶23} In State v. Gondor, the Ohio Supreme Court held that a trial court's decision granting or denying a post-conviction petition filed pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion; a reviewing court should not overrule the trial court's finding on a petition for post-conviction relief that is supported by competent and credible evidence." 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77(2006), ¶ 58.
{¶24} An abuse of discretion exists where the reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice, or where the judgment reaches an end or purpose not justified by reason and the evidence. Tennant v. Gallick, 9th Dist. Summit No. 26827, 2014-Ohio-477, ¶35; In re Guardianship of S .H., 9th Dist. Medina No....
To continue reading
Request your trial