State v. Zich
| Decision Date | 03 February 2017 |
| Docket Number | Court of Appeals No. L-15-1263 |
| Citation | 2017 Ohio 414 |
| Parties | State of Ohio Appellee v. Thomas Zich Appellant |
| Court | Ohio Court of Appeals |
DECISION AND JUDGMENT
Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Deborah Kovac Rump and Martin E. Mohler, for appellant.
{¶ 1} Appellant, Thomas Zich, appeals the judgment of the Lucas County Court of Common Pleas, denying his petition for postconviction relief and granting a motion for summary judgment filed by appellee, the state of Ohio. Finding no error, we affirm.
{¶ 2} On June 1, 2007, appellant was indicted on a charge of murder arising out of the death of his wife, Mary Jane Zich, whose body was found in Lucas County on December 18, 1991. Following pretrial discovery and motion practice, a multi-day jury trial commenced on June 9, 2009. At the conclusion of the trial, the jury found appellant guilty of murder in violation of R.C. 2903.02(A) and 2929.02, a felony of the first degree, and the trial court imposed a prison sentence of 15 years to life. Appellant then appealed his conviction to this court. Ultimately, we found no merit to appellant's arguments and, on December 16, 2011, issued our decision affirming his conviction. State v. Zich, 6th Dist. Lucas No. L-09-1184, 2011-Ohio-6505. The Supreme Court of Ohio subsequently declined to accept jurisdiction of appellant's discretionary appeal. State v. Zich, 131 Ohio St.3d 1510, 2012-Ohio-1710, 965 N.E.2d 311.
{¶ 3} While the appeal was pending in this court, appellant filed a petition for postconviction relief with the trial court. In his petition, appellant asserted the following claims: (1) actual innocence; (2) violation of Brady v. Maryland, 373 U.S. 83 (1963); (3) right to present a defense; (4) violation of his Confrontation Clause rights; and (5) ineffective assistance of counsel. Additionally, appellant argued that Ohio's postconviction procedures under R.C. 2953.21 were unconstitutional.
{¶ 4} On June 15, 2012, the stated filed a motion for summary judgment on appellant's postconviction petition. After appellant responded and the state filed its reply, the trial court heard oral arguments on the question of whether it needed to hold an evidentiary hearing before ruling on the merits of appellant's postconviction petition.Thereafter, on September 8, 2015, the court issued its decision on the state's motion for summary judgment and appellant's postconviction petition.
{¶ 5} Upon consideration, the trial court found appellant's arguments not well-taken, either because they were decided by this court on direct appeal and were therefore barred by res judicata, or because they failed on the merits. Consequently, the court found that appellant was not entitled to postconviction relief and granted the state's motion for summary judgment. Appellant's timely appeal followed.
{¶ 6} On appeal, appellant assigns the following errors for our review:
{¶ 7} R.C. 2953.21(A)(1)(a) provides for postconviction relief. That section states, in pertinent part:
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 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 criminal defendant seeking to challenge his conviction through a petition for postconviction relief is not automatically entitled to a hearing. R.C. 2953.21; State v. Calhoun, 86 Ohio St.3d 279, 282, 714 N.E.2d 905 (1999). According to R.C. 2953.21(C), a petitioner is entitled to a hearing when, upon review of the petition and therecord, the trial court finds that there are "substantive grounds for relief." In making such a determination, the trial court must consider the petition and supporting affidavits as well as all of the files and records pertaining to the proceedings against the petitioner. R.C. 2953.21(C).
{¶ 9} A petition for postconviction relief under R.C. 2953.21 is a collateral civil attack on a criminal judgment, not an appeal of the judgment. State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994). "It is a means to reach constitutional issues which would otherwise be impossible to reach because the evidence supporting those issues is not contained in the record." State v. Murphy, 10th Dist. Franklin No. 00AP-233, 2000 Ohio App. LEXIS 6129 (Dec. 26, 2000). R.C. 2953.21 et seq. affords a prisoner postconviction relief "only if the court can find that there was such a denial or infringement of the rights of the prisoner as to render the judgment void or voidable under the Ohio Constitution or the United States Constitution." State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph four of the syllabus. A postconviction petition does not provide a petitioner a second opportunity to litigate the conviction. State v. Hessler, 10th Dist. Franklin No. 01 AP-1011, 2002-Ohio-3321, ¶ 32.
{¶ 10} "The denial of a postconviction petition will not be overturned on appeal absent a finding of abuse of discretion." State v. Gonzales, 6th Dist. Wood No. WD-09-078, 2010-Ohio-4703, ¶ 14, citing State v. Williams, 165 Ohio App.3d 594, 2006-Ohio-617, 847 N.E.2d 495, ¶ 20 (11th Dist.). An abuse of discretion connotes a finding that the trial court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 11} In his first assignment of error, appellant argues that the trial court erred in denying postconviction relief based upon res judicata. Appellant contends that the court's reliance on res judicata unconstitutionally restricted his access to postconviction relief in violation of the Constitutions of the United States and the State of Ohio.
{¶ 12} In Perry, supra, the Supreme Court of Ohio set forth the following res judicata rule as it pertains to postconviction petitions:
Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at trial, which resulted in that judgment of conviction, or on an appeal from that judgment. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104, at paragraph nine of the syllabus.
{¶ 13} Here, appellant argues that the foregoing rule should not apply to his claims of ineffective assistance of trial counsel, because he supported his claims with evidence dehors the record. Alternatively, he contends that the application of the res judicata rule violates his constitutional rights because it leaves no meaningful opportunity for him to collaterally attack his conviction.
{¶ 14} At the outset, we note that the vast majority of appellant's ineffective assistance arguments were decided by the trial court on their merits. These arguments were not decided on res judicata grounds. In his petition for postconviction relief,appellant argued that trial counsel failed to properly investigate the case or present a defense. Specifically, appellant asserted that trial counsel failed to develop the record concerning Mary Jane's history of drug abuse and reckless behavior in order to "raise reasonable doubt that there were many potential suspects in this case."
{¶ 15} Essentially, appellant urged that further development of the record by way of more effective cross-examination of the state's witnesses would have revealed several additional murder suspects. Appellant asserted that several witnesses told police in 1991 that Mary Jane was a "regular" at the Oak Street Tavern, a bar in Toledo and the site where Mary Jane's body was discovered. In support of his petition, appellant attached an affidavit of Toledo Police officer Michael Scott. Scott, who was assigned to patrol the area around the Oak Street Tavern at the time of the murder, stated that the Oak Street Tavern was regarded as the "site of considerable criminal activity," including "alcohol-related crimes, drug-related crimes and crimes of violence."
{¶ 16} Upon examination of appellant's argument, the trial court found that the evidence to which appellant referred in supporting his...
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