Merit Brief of Appellee. Judge Patricia S. Oney

IN THE SUPREME COURT OF OHIO

STATE OF OHIO, CASE NO. 2006-2136 ex rel. DONALD KETTERER,

Appellant,

vs. On Appeal from the Court of Appeals of Butler County, Twelfth Appellate District, PATRICIA S. ONEY, JUDGE, App. No. CA2006-07-1171

Appellee.

MERIT BRIEF OF APPELLEE. JUDGE PATRICIA S. ONEY

Attorneys for Appellant: Attorneys for Appellee, Judge Oney:

DAVID H. BODIKER (0016590) ROBIN N. PIPER (0023205) Ohio Public Defender Butler County Prosecuting Attorney

RANDALLi. PORTER (0005835) DANIEL G. EICHEL (0008259) Assistant State Public Defender First Assistant Prosecuting Attorney [Counsel of Record] and Chief, Appellate Division [Counsel of Record] Office of the Ohio Public Defender 8 East Long Street, 11`h Floor MICHAEL A. OSTER, JR. (0076491) Columbus, Ohio 43215 Assistant Prosecuting Attorney Telephone: (614) 466-5394 Government Services Center Fax: (614) 644-0703 315 High Street, 11`h Floor Hamilton, Ohio 45012-0515 Telephone: (513) 887-3474 Fax: (513) 887-3489

OFFICE OF PROSECUTING ATTORNEY BUTLER COUNTY, OHIO FEB 0 87007 BOBIN PIPER PROSECUTING ATTORNEY MARCIA J. MENGEL, CLERK GOVENNMENiSENVICESCENTEN 315 HIGH ST.. 11TN FLOOR SUPREME CpUk1 OF OHio PA.BO[515 NAMILTON,ONIOC5013 TABLE OF CONTENTS AND AUTHORITIES

Pa e

TABLE OF AUTHORITIES v

STATEMENT OF THE CASE AND FACTS 1-3

ARGUMENT

Proposition of Law No. 1:

In the absence of a patent and unambiguous lack of jurisdiction to proceed, a court of common pleas having general subject-matter jurisdiction has authority to determine its own jurisdiction, and a party challenging that jurisdiction has an adequate remedy by appeal. 4-6

Authorities cited in support of Proposition of Law No. 1:

State ex rel. Blackwell v. Crawford, 106 Ohio St.3d 447, 2005-Ohio-5124, 835 N.E.2d 1232 4,5 Section 3(B)(1)(d), Article IV, Ohio Constitution 4 n.17 State ex re/. Tubbs Jones v. Suster (1998), 84 Ohio St.3d 70, 701 N.E.2d 1002 4 n.17 State ex rel. Butler Cty. Bd. of Commrs. v. Court of Common Pleas (1978), 54 Ohio St.2d 354, 8 0.0.3d 359, 376 N.E.2d 1343 5 State ex rel. Conkle v. Sadler, 99 Ohio St.3d 402, 2003-Ohio-4124, 792 N.E.2d 1116 5 State ex rel. Brady v. Pianka, 106 Ohio St.3d 147, 2005-Ohio-4105, 832 N.E.2d 1202 5 State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263 5 State ex re/. Downs v. Panioto, 107 Ohio St.3d 347, 2006-Ohio-8, 839 N.E.2d 911 5 State ex rel. Florence v. Zitter, 106 Ohio St.3d 87, 2005-Ohio-3804, 831 N.E.2d 1003 5 n.18 State ex rel. Douglas v. Burlew, 106 Ohio St.3d 180, 2005-Ohio-4382, 833 N.E.2d 293 5 State ex rel. Hummel v. Sadler (1995), 70 Ohio St.3d 587, 639 N.E.2d 1189 6 Civ.R. 12(B)(6) 6 Clark v. Connor (1998), 82 Ohio St.3d 309, 695 N.E.2d 751 6 State ex rel. Wehrung v. Dinkelacker (2001), 92 Ohio St.3d 310, 750 N.E.2d 154 6 State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829 6

i TABLE OF CONTENTS AND AUTHORITIES (continued) Pa e

Proposition of Law No. 2:

A post-conviction proceeding as authorized by R.C. 2953.21 et seq., which is required to be "file[d] in the court that imposed sentence," is a civil collateral attack on a criminal judgment, rather than a continuation of the trial which resulted in the conviction and sentence; accordingly, in the absence of language in R.C. 2953.21 that would require that the same "panel of three judges" convened for trial upon a jury waiver to "hear, try, and determine" a capital defendant's guilt and sentence under R.C. 2945.05-.06 and 2929.03, a post-conviction is to be determined by the judge of the court who presided over the trial (or in said judge's absence, any judge of that court). 7-13

Authorities cited in support of Proposition of Law No. 2:

Douglas, supra at 11 16 7,13 Hummel, supra at 1132 7 R.C. 2953.21 et seq. passim, 7-13 R.C. 2945.05 7 R. C. 2945.06 passim, 7-13 R.C. 2929.03 7,8,9,10,13 Section 4(B), Article IV of the Ohio Constitution 7 State ex rel. Russo v. McDonnell, 110 Ohio St.3d 144, 2006-Ohio-3459, 852 N.E.2d 145 7,9 R.C. 2931.03 7 R.C. 2929.022 8 R.C. 2929.04 8,10 R.C. 2929.05 8 R.C. 2929.06(B) 8 R.C. 2949.28(B) (1) (b) 9 Weaver v. Edwin Shaw Hosp., 104 Ohio St.3d 390, 2004-Ohio-6549, 819 N.E.2d 1079 9 State v. Tilton (Dec. 20, 1978), Stark App. No. 4964, 1978 WL 217597 9 n.19 Former G.C. 13442-5 9 n.19 State v. Calhoun (1999), 86 Ohio St.3d 279, 714 N.E.2d 905 10 State v. Steffen (1994), 70 Ohio St.3d 399, 639 N.E.2d 67 10 Pratts v. Huriev, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992 10 n.20 R.C. 2903.01 10 n.20 Crim.R. 25(B) 10 n.21 Beattvv. Alston (1975), 43 Ohio St.2d 126, 72 0.0.2d 70, 330 N.E.2d 921 10 n.21 State v. Stumpf (1987), 32 Ohio St.3d 95, 512 N.E.2d 598 10,11 Crim.R. 32.1 11

® TABLE OF CONTENTS AND AUTHORITIES (continued) Page

Crim.R. 33 11 State v. Bush (2002), 96 Ohio St.3d 235, 773 N.E.2d 522 11 n.22 State v. Stumpf (July 23, 1990), 5th Dist. No. 89-CA-50, 1990 WL 108728 11 State v. Bays (Jan. 30, 1998), 2nd Dist. No. 95-CA-118, 1998 WL 31514 12 n.24 State v. Bays, 2nd Dist. No. 2003-CA-4, 2003 WL 21419173 12 n.24 State v. Davis (Sept. 30, 1996), Butler App. No. CA95-07-124, 1996 WL 551432 12 State v. Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011 12 Crim.R. 11(C)(3) 13 State v. Filliaki (1999), 86 Ohio St.3d 230, 714 N.E.2d 867 13 n.25 State v. Parker, 95 Ohio St.3d 524, 2002-Ohio-2833, 769 N.E.2d 846 13 n.25 State v. Davis (1988), 38 Ohio St.3d 361, 528 N.E.2d 925 13 n.26 State v. Green (2000), 90 Ohio St.3d 352, 738 N.E.2d 1208 13 n.26 Montgomery Ctv. Commrs. v. Carey (1853), 1 Ohio St. 463 13 State ex rei. Stevenson v. Murrav (1982), 69 Ohio St.2d 112, 23 0.0.3d 160, 431 N.E.2d 324 13

Proposition of Law No. 3:

A direct appeal, not the extraordinary writ of prohibition, is the proper remedy for a claimed violation of R.C. 2945.06; if a single judge, upon a jury waiver, errs in trying a criminal case in a bench trial, accepting a guilty plea, or sentencing an offender charged with a capital offense, despite the requirement of R.C. 2945.06 that capital offenses "be tried by a court to be composed of three judges," such error in the court's exercise of jurisdiction renders the judgment voidable and the error must be raised on direct appeal, as distinguished from a judgment which is void ab initio due to a court's lack of subject-matter jurisdiction. 14-15

Authorities cited in support of Proposition of Law No. 3;

R.C. 2945.06 14,15 Kirklin v. Enlow (2000), 89 Ohio St.3d 455, 732 N.E.2d 982 14 State ex rel. Collins v. Leonard (1997), 80 Ohio St.3d 477, 687 N.E.2d 443 14,15 Pratts v. Hurlev, syllabus 14 State ex rel. Rash v. Jackson, 102 Ohio St.3d 145, 2004-Ohio-2053, 807 N.E.2d 344 15 State v. Thomas. 97 Ohio St.3d 309, 2002-Ohio-6624, 779 N.E.2d 1017 15 State ex re/. Billings v. Friedland (2000), 88 Ohio St.3d 237, 724 N.E.2d 1151 15 R.C. 2945.05 15 State v. Pless (1996), 74 Ohio St.3d 333, 658 N.E.2d 766 15

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CONCLUSION AND PROOF OF SERVICE 16

APPENDIX (unpublished cases) Ann'x. Pa e

State v. Bavs, 2nd Dist. No. 2003-CA-4, 2003 WL 21419173 A-1 State v. Davis (Sept. 30, 1996), Butler App. No. CA95-07-124, 1996 WL 551432 A-8 State v. Stumpf (July 23, 1990), 5th Dist. No. 89-CA-50, 1990 WL 108728 A-17

[Note: State v. Bays (Jan. 30, 1998), 2nd Dist. No. 95-CA-118, 1998 WL 31514, and State v. Tilton (Dec. 20, 1978), Stark App. No. 4964, 1978 WL 217597, were cited in the appellant's merit brief, and pursuant to Rule 7(C), Rules for the Reporting of Opinions, those decisions are not included herein.]

iv TABLE OF AUTHORITIES

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CASES:

Beattv v. Alston (1975), 43 Ohio St.2d 126, 72 0.0.2d 70, 330 N.E.2d 921 10 n.21 Clark v. Connor (1998), 82 Ohio St.3d 309, 695 N.E.2d 751 6 Kirklin v. Enlow (2000), 89 Ohio St.3d 455, 732 N.E.2d 982 14 Montoomerv Cty. Commrs. v. Carev (1853), 1 Ohio St. 463 13 Pratts v. Hurlev, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992 10 n.20,14 State v. Bays (Jan. 30, 1998), 2nd Dist. No. 95-CA-118, 1998 WL 31514 12 n.24 State v. Bavs, 2nd Dist. No. 2003-CA-4, 2003 WL 21419173 12 n.24 State v. Bush (2002), 96 Ohio St.3d 235, 773 N.E.2d 522 11 n.22 State v. Calhoun (1999), 86 Ohio St.3d 279, 714 N.E.2d 905 10 State v. Davis (1988), 38 Ohio St.3d 361, 528 N.E.2d 925 13 n.26 State v. Davis (Sept. 30, 1996), Butler App. No. CA95-07-124, 1996 WL 551432 12 State v. Filliagl (1999), 86 Ohio St.3d 230, 714 N.E.2d 867 13 n.25 State v. Green (2000), 90 Ohio St.3d 352, 738 N.E.2d 1208 13 n.26 State v. Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011 12 State v. Parker, 95 Ohio St.3d 524, 2002-Ohio-2833, 769 N.E.2d 846 13 n.25 State v. Pless (1996), 74 Ohio St.3d 333, 658 N.E.2d 766 15 State v. Steffen (1994), 70 Ohio St.3d 399, 639 N.E.2d 67 10 State v. Stumaf (1987), 32 Ohio St.3d 95, 512 N.E.2d 598 10,11 State v. Stumaf (July 23, 1990), 5th Dist. No. 89-CA-50, 1990 WL 108728 11 State v. Tilton (Dec. 20, 1978), Stark App. No. 4964, 1978 WL 217597 9 n.19 State v. Thomas 97 Ohio St.3d 309, 2002-Ohio-6624, 779 N.E.2d 1017 15 State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829 6 State ex rei. Billings v. Friedland (2000), 88 Ohio St.3d 237, 724 N.E.2d 1151 15 State ex rel. Blackwell v. Crawford, 106 Ohio St.3d 447, 2005-Ohio-5124, 835 N.E.2d 1232 4,5 State ex rel. Butler Cty. Bd. of Commrs. v. Court of Common Pleas (1978), 54 Ohio St.2d 354, 8 0.0.3d 359, 376 N.E.2d 1343 5 State ex rel. Brady v. Pianka, 106 Ohio St.3d 147, 2005-Ohio-4105, 832 N.E.2d 1202 5 State ex rel. Collins v. Leonard (1997), 80 Ohio St.3d 477, 687 N.E.2d 443 14,15 State ex rel. Conkle v. Sadler, 99 Ohio St.3d 402, 2003-Ohio-4124, 792 N.E.2d 1116 5 State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263 5 State ex rel. Downs v. Panioto, 107 Ohio St.3d 347, 2006-Ohio-8, 839 N.E.2d 911 5 State ex rel. Douglas v. Burlew, 106 Ohio St.3d 180, 2005-Ohio-4382, 833 N.E.2d 293 5,7,13

v TABLE OF AUTHORITIES (continued) Pa e

CASES:

State ex rel. Florence v. Zitter, 106 Ohio St.3d 87, 2005-Ohio-3804, 831 N.E.2d 1003 5 n.18 State ex rel. Hummel v. Sadler (1995), 70 Ohio St.3d 587, 639 N.E.2d 1189 6,7 State ex rel. Rash v. Jackson, 102 Ohio St.3d 145, 2004-Ohio-2053, 807 N.E.2d 344 15 State ex rel. Russo v. McDonnell, 110 Ohio St.3d 144, 2006-Ohio-3459, 852 N.E.2d 145 7,9 State ex rel. Stevenson v. Murrav (1982), 69 Ohio St.2d 112, 23 0.0.3d 160, 431 N.E.2d 324 13 State ex rel. Tubbs Jones v. Suster (1998), 84 Ohio St.3d 70, 701 N.E.2d 1002 4 n.17 State ex rel. Wehrung v. Dinkelacker (2001), 92 Ohio St.3d 310, 750 N.E.2d 154 6 Weaver v. Edwin Shaw Hosa., 104 Ohio St.3d 390, 2004-Ohio-6549, 819 N.E.2d 1079 9

CONSITUTIONAL PROVISIONS:

Section 3(B)(1)(d), Article IV, Ohio Constitution 4 n.17 Section 4(B), Article IV of the Ohio Constitution 7

STATUTES & RULES:

R.C. 2903.01 10 n.20 R.C. 2929.03 7,8,9,10,13 R.C. 2953.21 et seq. passim R.C. 2945.05 7,15 R.C. 2945.06 passim 7-13,14,15 Civ.R. 12(B) (6) 6 Crim.R. 11(C) (3) 13 Crim.R. 25(B) 10 n.21 Crim.R. 32.1 11 Crim.R. 33 11

vi STATEMENT OF THE CASE AND FACTS

This is an appeal from the October 3, 2006 judgment entry of the Court of Appeals of Butler County, Twelfth Appellate District, dismissing Relator-Appellant Donald Ketterer's original action in prohibition against Respondent-Appellee Patricia S. Oney, Judge of the

Butler County Common Pleas Court.

Ketterer, an inmate of the Ohio State Penitentiary at Youngstown, Ohio by virtue of his conviction for aggravated murder with capital specifications and sentence of death,1 brought this Complaint for Writ of Prohibition2 as an original action in the Court of Appeals for Butler County, Twelfth Appellate District of Ohio, requesting an order prohibiting

Respondent-Appellee, Patricia S. Oney, Judge of the Butler County Common Pleas Court, from ruling on his pending post-conviction petition and related motions. As correctly alleged in his Complaint for Writ of Prohibition (at paragraphs 1 through 6), Ketterer was indicted in March 2003, inter alia, for aggravated murder with capital specifications,3 and his case was duly assigned to the Respondent Judge Oney's docket; after the entry of a jury waiver4 on January 27, 2004, Ketterer entered a guilty plea on that same date5 before a three judge panel (Oney, Presiding Judge, and Judges Matthew J. Crehan and Michael J.

Sage), and evidence was heard by said three-judge panel on January 28-29, 2004.

1. Supplement at p. 16-18, "Exhibit F" (Judgment of Conviction Entry in Butler County Common Pleas Case No. CR2003-03-0309).

2. Supplement at p. 1-5, Complaint for Writ of Prohibition.

3. Supplement at p. 6-7, "Exhibit A" (Indictment).

4. Supplement at p. 8, "Exhibit B" (Jury Waiver).

5. Supplement at p. 9-12, "Exhibit C" (Plea of Guilty and Jury Waiver). 0 The panel found Ketterer guilty, inter alia, of aggravated murder with capital specifications.6

Then, after a sentencing hearing conducted on February 2-4, 2004, Ketterer was sentenced to death by the three-judge panel,' and this Court affirmed the conviction and death sentence on direct appeal, in State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-

5283, 855 N.E.2d 48, reconsideration denied, 112 Ohio St.3d 1409, 2006-Ohio-6447,

858 N.E.2d 819 (Table).

On December 28, 2004, while the direct appeal was pending, Ketterer through counsel filed a petition for post-conviction relief pursuant to R.C. 2953.21 et seq.8 alleging a number of claims for relief; on January 7, 2005 the Prosecuting Attorney filed an answer to the petition, and on April 27, 2005, Ketterer also filed a motion to reconvene the three judge panel for purposes of these post-conviction proceedings.9 The Prosecuting

Attorney initially filed a response to the latter motion agreeing that the panel should reconvene,10 but after an informal status conference in June 2005 and the trial court's directing the parties to brief the jurisdictional issue, the Prosecuting Attorney reconsidered the State's position on the matter and filed a supplemental pleading on August 12, 2005, requesting that the trial court deny Ketterer's motion to reconvene the three judge panel.11

6. Supplement at p. 13-15,"Exhibit D" (Entry of Findings) and "Exhibit E" (Verdict).

7. Supplement at p. 16-18, "Exhibit F" (Judgment of Conviction Entry).

8. Supplement at p. 19, "Exhibit G" (Cover page of Post-conviction Petition).

9. Supplement at p. 20-23, "Exhibit H" (Motion to Reconvene Three Judge Panel).

10. Supplement at p. 24-25, " Exhibit I" (State's Response to Defendant's Motion to Reconvene Three-Judge Panel).

11. Supplement at p. 41-44 (State of Ohio's Supplemental Pleading) attached as "Respondent's Exhibit #1" to Respondent's Motion to Dismiss Complaint. 2 On April 24, 2006, Judge Oney considered all the foregoing and issued a six-page decision and entry overruling the appellant's motion to reconvene the three judge panel.12

Ketterer's Complaint for Writ of Prohibition13 followed on July 19, 2006. In this complaint, Ketterer alleged that because he was sentenced to death by a three judge panel, "the three-judge panel has exclusive jurisdiction to decide his post-conviction petition and all related matters" (sic, Complaint at page 1), and that "Respondent [Judge

Oney] lacks jurisdiction to rule on Donald Ketterer's post-conviction petition and related issues" (sic, Complaint at page 3, 4 11). Respondent Judge Oney (through her counsel, the Butler County Prosecuting Attorney) filed a motion to dismiss the prohibition action on

July 26, 2006, on the ground that Ketterer's complaint failed to state a claim against

Respondent Judge upon which extraordinary relief in prohibition can be granted.14 After consideration of the foregoing and Ketterer's memorandum in opposition,15 the Butler

County Court of Appeals, Twelfth Appellate District, issued its decision on October 3, 2006, granting the Respondent Judge's motion to dismiss,16 and this appeal followed.

12. Supplement at p. 26-31, " Echibit J" (Decision and Entry Overruling Defendant's Motion to Reconvene Three Judge Panel).

13. Supplement at p. 1-5, Complaint for Writ of Prohibition.

14. Supplement at p. 32-53, Respondent's Motion to Dismiss Complaint.

15. Supplement at p. 54-142, Relator's Memorandum in Opposition to the Respondent's Motion to Dismiss.

16. Supplement at p. 143-147, Entry Granting Motion to Dismiss.

3 ARGUMENT

Proposition of Law No. 1:

In order to be entitled to a writ of prohibition,17 a relator must establish that

(1) the respondent is about to exercise judicial power, (2) the exercise of that power is not authorized by law, and (3) denial of the writ will cause injury to relator for which no other adequate remedy in the ordinary course of law exists. See, e.g., State ex rel. Blackwell v. Crawford, 106 Ohio St.3d 447, 2005-Ohio-5124, at 9 18, 835 N.E.2d 1232. In the case at bar, Ketterer established the first of these requirements; Respondent Judge Oney, as the Butler County Common Pleas Court judge to whom Ketterer's case was assigned, has exercised and will continue to exercise jurisdiction, under R.C. 2953.21. For the remaining requirements, however, Ketterer did not meet the criteria for issuance of extraordinary relief, because Respondent Judge Oney did not patently and unambiguously lack jurisdiction, see id. at 1111 19-27, and Ketterer clearly had an adequate remedy in the ordinary course of law by way of post-judgment appeal, id. at 1111 28-29.

17. A court of appeals is vested with original jurisdiction to issue a writ of prohibition. Section 3(B)(1)(d), Article IV, Ohio Constitution. Butwhile neitherthe Constitution nor the General Assembly has defined the parameters of prohibition, it has been determined by this Court, drawing from principles of common law, that "a 'writ of prohibition has been defined in general terms as an extraordinary judicial writ issuing out of a court of superior jurisdiction and directed to an inferior tribunal commanding it to cease abusing or usurping judicial functions.' *** In other words, the purpose of a writ of prohibition is to restrain inferior courts and tribunals from exceeding their jurisdiction. *** As such, a writ of prohibition is an 'extraordinary remedy which is customarily granted with caution and restraint***.' " State ex rel. Tubbs Jones v. Suster (1998), 84 Ohio St.3d 70, 73, 701 N.E.2d 1002 (internal citations omitted).

4 In the absence of a patent and unambiguous lack of jurisdiction, a court having general subject-matter jurisdiction can determine its own jurisdiction, and a party challenging that jurisdiction has an adequate remedy by appeal. Blackwell, id., at 4 19; see, also, State ex rel. Butler Ctv. Bd. of Commrs. v. Court of Common Pleas (1978),

54 Ohio St.2d 354, 356, 8 0.0.3d 359, 376 N.E.2d 1343, and State ex re/. Conkle v.

Sadler, 99 Ohio St.3d 402, 2003-Ohio-4124, at 118, 792 N.E.2d 1116. Therefore, if the lack of jurisdiction is not patent and unambiguous, there is generally no entitlement to a writ of prohibition to prevent a trial court's exercise of jurisdiction. Id., citing State ex rel. Brady v. Pianka, 106 Ohio St.3d 147, 2005-Ohio-4105, at 44 9-10, 832 N.E.2d

1202. Prohibition will not issue under these circumstances because the relator has an adequate remedy in the ordinary course of law, see Bradv, id. at 44 9 and 15; Blackwell, at 44 19 and 28-29; and State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-

Ohio-5795, at 11 16, 856 N.E.2d 263, citing State ex rel. Downs v. Panioto, 107 Ohio

St.3d 347, 2006-Ohio-8, at 127, 839 N.E.2d 911.18 And if happens that the record is simply not clear enough to be certain whether Respondent Judge Oney lacks jurisdiction, at that point, it was proper for the Court of Appeals to deny a writ of prohibition instead of erroneously granting one. See Downs, id. at 133. This Court has stated that in prohibition actions, "[w]e need not expressly decide [a relator's] claims that [a judge] lacks jurisdiction, because our review is restricted to whether [the judge] patently and unambiguously lacks jurisdiction." State ex rel. Douklas v. Burlew, 106 Ohio St.3d

180, 2005-Ohio-4382, at 11 16, 833 N.E.2d 293 (emphasis by the Court, sic).

18. Conversely, in a case where a patent and unambiguous lack of jurisdiction is shown, the availability of alternate remedies like appeal is immaterial. State ex rel. Florence v. Zitter, 106 Ohio St.3d 87, 2005-Ohio-3804, at 416, 831 N.E.2d 1003.

5 A court of appeals's Civ.R. 12(B)(6) dismissal of an original action in prohibition for

failure to state a claim upon which such relief can be granted is appropriate if, after all

factual allegations of the complaint are presumed true and all reasonable inferences are

made in the relator's favor, it appears beyond doubt that the relator can prove no set of

facts warranting relief. See, e.g., Clark v. Connor (1998), 82 Ohio St.3d 309, 311, 695

N.E.2d 751, and State ex reI. Hummel v. Sadler, 96 Ohio St.3d 84, 2002-Ohio-3605,

at 4 20, 771 N.E.2d 853. Civ.R. 12(B)(6) dismissal of a complaint for extraordinary relief

may be based on "merits" issues such as the availability of an adequate remedy in the

ordinary course of law. Hummel, id. at 1I 18.

In the case at bar, the Court of Appeals correctly applied the foregoing principles

to conclude, in the particular situation presented, that

"*** [P]ost-conviction relief is a separate, civil proceeding, and need not necessarily involve the judge or judges who participated in the original trial or imposed the original sentence. *** "*** [R]espondent does not patently and unambiguously lack jurisdiction to consider relator's petition for post-conviction relief. *** Relator [Ketterer] further has a remedy at law by way of appeal once respondent, a single judge, make a ruling on his post-conviction relief petition." [Entry at p. 4.]

This Court should affirm the judgment below, leaving the question of jurisdiction to be

conclusively resolved on appeal from the trial court's judgment. See, e.g., State ex rel.

Wehrung v. Dinkelacker (2001), 92 Ohio St.3d 310, 750 N.E.2d 154 [affirming a court

of appeals's dismissal of action in prohibition concerning jurisdiction of the court of

common pleas pursuant to R.C. 2151.23(1) (146 Ohio Laws, Part II, 1, 2051, 2054,

effective March 31, 1997) over 52-year old adult arrested in 2000 for murder committed

in 1963, when he was 15 years old], and State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-

5059, at 44 8-49, 775 N.E.2d 829 (same jurisdictional issue, resolved on direct appeal).

6 Proposition of Law No. 2:

While it is unnecessary to resolve the jurisdictional question one way or the other in a prohibition action, see Dou las, at 1116, and Hummel, at 4 32, Respondent would submit that Ketterer's sole Proposition of Law - asserting that a three judge panel must reconvene for purposes of deciding his post-conviction proceedings under R.C. 2953.21 et seq., and that Respondent lacks jurisdiction in his case - is without merit. Ketterer contends that once a defendant charged with a capital offense has waived a jury trial under

R.C. 2945.05 and has elected to be tried by a panel of three judges under R.C. 2945.06 and 2929.03, the said three-judge panel after trial retains exclusive jurisdiction which continues indefinitely, beyond the trial and sentencing, into post-conviction proceedings.

There is simply no reasoned authority supporting Ketterer's contention.

Under Section 4(B), Article IV of the Ohio Constitution ("[t]he courts of common pleas and divisions thereof shall have such original jurisdiction over all justiciable matters

*** as may be provided by law"), the Ohio Constitution provides that jurisdiction is conferred on courts of common pleas by the General Assembly by statute, see State ex rel. Russo v. McDonnell, 110 Ohio St.3d 144, 2006-Ohio-3459, at 4 23, 852 N.E.2d

145. R.C. 2931.03 grants the courts of common pleas "original jurisdiction of all crimes

7 and offenses," i.e., jurisdiction over trials in criminal cases; and jurisdiction over

proceedings for post-conviction relief from a common pleas court's judgment of criminal conviction or sentence is conferred upon that court by virtue of R.C. 2953.21-.23. In

particular, R.C. 2953.21 provides, in pertinent part:

"(A)(1)(a) Any person who has been convicted of a criminal offense *** 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. ***.

"(3) In a petition filed under division (A) of this section, a person who has been sentenced to death may ask the court to render void or voidable the judgment with respect to the conviction of aggravated murder or the specification of an aggravating circumstance or the sentence of death.

"(C) The court shall consider a petition that is timely filed under division (A)(2) of this section even if a direct appeal of the judgment is pending. Before granting a hearing on a petition filed under division (A) of this section, the court shall determine whether there are substantive grounds for relief. In making such a determination, the court shall consider, in addition to the petition, the supporting affidavits, and the documentary evidence, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court's journal entries, the journalized records of the clerk of the court, and the court reporter's transcript. ***. If the court dismisses the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal. „***

[Emphasis added.] Notably, in all instances - and even in division (A)(3) above, where reference is made to the post-conviction remedy "with respect to the conviction of aggravated murder or the specification of an aggravating circumstance or the sentence of death" - the statute refers to "the court" as arbiter of the post-conviction proceeding, whereas no reference is made to "a court composed of three judges," cf. R.C. 2945.06;

"panel of three judges," cf. R.C. 2929.022, 2929.03(C)(2)(b)(i), (D)(3), (E), (F), and (G),

2929.04(B), 2929.05, and 2929.06(B); or "three-judge panel," cf. R.C. 2949.28(B)(1(b).

8 The General Assembly's language neither provides for, nor contemplates, a three-judge panel's consideration of a post-conviction petition under R.C. 2953.21(A). The maxim expressio unius est exclusio alterius, or "the expression of one thing implies the exclusion of another," see, e.g., Russo, at 4 41, prevents the addition of additional statutory terms not expressly incorporated into this statute by legislative enactment, see generally Weaver v. Edwin Shaw Hosp., 104 Ohio St.3d 390, 2004-Ohio-6549 at 1I 20, 819 N.E.2d 1079; thus, the General Assembly's omission of the words "court composed of three judges" or

"panel of three judges" implies the exclusion of that jurisdictional phrase, used by the

General Assembly only in the context of capital trials (guilt-phase and sentencing).19

19. This is the very basis of the only decision actually deciding this issue, State v. Tilton (Dec. 20, 1978), Stark App. No. 4964, 1978 WL 217597, which reasoned as follows:

"The criminal trial of defendants was heard by a three judge court panel. Ajurytrial had been waived. Defense counsel asserts the defendants requested and had a right to request the common pleas court to have the same three judge panel which heard the trial evidence and sentenced the defendants to hear and determine the petition to vacate the conviction and sentence under R.C. 2953.21 ***. "There is no language in Section 2953.21 proceedings for post-conviction relief which indicates that the term 'court' as used therein has other than its usual meaning. This means onejudge and it maywell be ajudge otherthan one of thejudges presiding at the trial which resulted in a conviction and sentence."

Tilton, at *4. Appellant derides the court of appeals for relying on the twenty-eight year old Tilton case, yet he does not acknowledge that the language in R.C. 2953.21, on which the decision in Tilton is based, has remained the same, in substance, from the statute's enactment in 1965, over forty years ago, to the present day. The statutory basis today for a "court composed of threejudges" for trial of a capital case, R.C. 2945.06, actually pre-existed the Ohio post-conviction remedy and is unchanged in substance from long before the time of the Tilton case (other than a 1982 revision requiringthe panel to be unanimous on its finding of guilty or not guilty) - indeed, the threejudge panel was a General Code provision, G.C. 13442-5, before the revision of Ohio's laws in 1953. And despite the opportunity to amend R.C. 2953.21 when it enacted the current capital sentencing scheme in 1981, when it provided in R.C. 2929.03 for a "panel of three judges" to conduct the sentencing proceedings, the General Assembly made no amendment to R.C. 2953.21 in that regard.

9 In other words, the General Assembly could have used language in R.C. 2953.21 to

specifically confer exclusive jurisdiction over post-conviction proceedings to the same three judge panel that determined guilt and sentence under R.C. 2945.06 and 2929.03 in such

cases, but it did not do so.

Moreover, the post-conviction relief process authorized by R.C. 2953.21 et seq. is

a civil collateral attack on a criminal judgment, see State v. Calhoun (1999), 86 Ohio

St.3d 279, 281, 714 N.E.2d 905, and State v. Steffen (1994), 70 Ohio St.3d 399,

410, 639 N.E.2d 67; "[a] postconviction proceeding is not an appeal of a criminal

conviction," id., and it certainly is not a continuation of the trial of a capital case which

concluded with the judgment of conviction and sentence, wherein a panel of three judges

has exclusive jurisdiction upon a jury waiver.20 It is apparent that "the court" is granted jurisdiction, under R.C. 2953.21, to hear and decide this civil collateral attack on the judgment - i.e., the court of common pleas, and a judge of that court (certainly not the

original trial jury!) who presided in the matter, or in his/her absence, a judge of that court.21

Ketterer argues that his proposition of law is supported by State v. Stumpf (1987),

32 Ohio St.3d 95, 105, 512 N.E.2d 598, but this argument fails upon close examination.

20. See Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, at 11 35, 806 N.E.2d 992, stating that if an accused is charged with an offense punishable by death [aggravated murder under R.C.2903.01(A) or (B), with specification(s) of aggravating circumstances under R.C.2929.04(A)] and has waived a jury trial, R.C. 2945.06 requires that a three-judge panel be convened to hear a trial or guilty plea and impose sentence.

21. See Crim.R. 25(B) ("[i]f for any reason thejudge before whom the defendant has been tried is unable to perform the duties of the court after a verdict or finding of guilt, anotherjudge designated by the administrative judge, or, in the case of a single-judge division, by the Chief Justice of the Supreme Court of Ohio, may perform those duties"); accord, Beatty v. Alston (1975), 43 Ohio St.2d 126, 127, 72 0.0.2d 70, 330 N.E.2d 921. 10 In Stumpf, after one of the original members of the three-judge panel which had imposed

Stumpf's death sentence had died, the two remainingjudges heard and denied motions to withdraw his guilty plea or, in the alternative, to set aside sentence and conduct a new sentencing hearing, filed shortly after sentencing. In rejecting Stumpf's claim that it was error for only two judges to consider these post-sentence motions, the Court applied R.C.

2945.06 which expressly provides that "[t]he judges or a majority of them may decide all questions of fact and law arising upon the trial ***" (emphasis by the Court in Stumpf), and reasoned that "[u]nanimity is mandated only when the panel finds a defendant guilty or not guilty." Id. at 105. The decision in Stumpf, thus concerning these particular post- trial motions under Crim.R. 32.1 or Crim.R. 33, simply does not bear on the question whether a three-judge panel retains exclusive jurisdiction over post-conviction proceedings

brought pursuant to R.C. 2953.21 et seq. in cases where the three-judge panel has

imposed a death sentence.22 Indeed, if the Stumpf case is to be considered a

benchmark for this Court's decision, it is a matter of record that the petition for post- conviction relief in Stumpf was heard and determined by a single common pleas court judge. See Entry of the Common Pleas Court of Guernsey County (Judge David A. Ellwood,

presiding) dated November 27, 1989, attached by the court of appeals as an Appendix to its decision in State v. Stumpf (July 23, 1990), 5th Dist. No. 89-CA-50, 1990 WL

108728, jurisdictional motions overruled, 56 Ohio St.3d 712, 565 N.E.2d 835 (Table),

22. This Court has made it clear that a Crim.R. 32.1 postsentence motion to withdraw a guilty plea, as filed in Stumuf, is not the jurisdictional equivalent of a post- conviction proceeding brought pursuant to R.C. 2953.21 et seq., see State v. Bush (2002), 96 Ohio St.3d 235, 773 N.E.2d 522 (holdingthatthat Crim.R. 32.1 provides a distinct remedy from a post-conviction proceedings under R.C. 2953.21-.23, and that the jurisdictional requirements of the latter statutory provisions as to timeliness of filing a petition do not control a motion made under Crim.R. 32.1).

1 1 certiorari denied (1991), 502 U.S. 956, 112 S.Ct. 415, 116 L.Ed.2d 435.23 Anecdotal

examples of other such cases - where a single common pleas judge (either originally

presiding, or not a member of the original panel) decided post-conviction proceedings in

cases originally tried by a three-judge panel - are no doubt extant in every corner of Ohio, see e.g., State v. Davis (Sept. 30, 1996), Butler App. No. CA95-07-124, 1996 WL

551432, discretionary appeal not allowed, 77 Ohio St.3d 1520, 674 N.E.2d 372 (Table)

(affirming denial of post-conviction relief after evidentiary hearing in which two of the

original three judges were required to testify).24 But despite the opportunity to do so, this

Court has not indicated that a post-conviction proceeding under R.C. 2953.21 must be

determined by a three-judge panel where such case was originally tried to a panel, see

State v. Loft, 97 Ohio St.3d 303, 2002-Ohio-6625, at 11 13, 779 N.E.2d 1011.

Moreover, in other cases cited by Ketterer in which this Court expressly required a three-judge panel to "re-convene" upon reversal, each of those cases involved a remand

either for the purpose of a redetermination as to the three-judge panel's guilt-phase verdict

23. And Judge Ellwood was not a member of the three-judge panel in Stumpf's case. (composed of Judges Henderson, Bettis, and the late Judge Rice). See Supplement at p. 70 et seq. ("Exhibit B" attached to Relator's Memorandum in Opposition to the Respondent's Motion to Dismiss).

24. Likewise, Ketterer cites a single reference where a three-judge panel reconvened to hear post-conviction proceedings, apparently without either party contesting the panel's jurisdiction. State v. Bays (Jan. 30, 1998), 2nd Dist. No. 95-CA-118, 1998 WL31514 (reversingjudgment denying petition and remandingfor evidentiary hearing), discretionary appeal not allowed, 82 Ohio St.3d 1411, 694 N.E.2d 75 (Table). See Supplement at p. 128-135 ("Exhibit F" attached to Relator's Memorandum in Opposition to the Respondent's Motion to Dismiss). But it is unclear that the three- judge panel continued to reconvene in that case following remand, see State v. Bays, 2nd Dist. No. 2003-CA-4, 2003-Ohio-3234, 2003 WL 21419173 (affirming judgment denying petition after evidentiary hearing), discretionary appeal not allowed, 100 Ohio St.3d 1433, 2003-Ohio-5396, 797 N.E.2d 512 (Table).

12 pursuant to R.C. 2945.06 and/or its findings upon a defendant's guilty plea pursuant to

Crim.R. 11(C)(3),25 or for the purpose of resentencing inclusive of the death penalty where only "the trial jury, or panel" has statutory jurisdiction to impose sentence pursuant to the express language of R.C. 2929.03(C)(2)(b)(i), (D)(3), and (F),26 and those cases were remanded for the three-judge panel to proceed, respectively, from the point in trial at which error occurred - thus invoking jurisdiction for sentencing under R.C. 2929.03. See

Filliagi, 86 Ohio St.3d at 240 ("[u]pon remand, the trial panel is required to proceed from the point at which the error occurred"), citing Montgomery Cty. Commrs. v. Carey

(1853), 1 Ohio St. 463, paragraph one of the syllabus, and State ex rel. Stevenson v.

Murrav (1982), 69 Ohio St.2d 112, 113, 23 0.0.3d 160, 431 N.E.2d 324.

In summary, should the Court deem it appropriate to decide the question as to

Respondent's exercise of jurisdiction, cf. Douglas at 1f 16, the statutory language indicates that it is proper for a single common pleas judge, rather than a three-judge panel, to exercise jurisdiction over a R.C. 2953.21 post-conviction petition filed in that court.

25. See State v. Fillia;si (1999), 86 Ohio St.3d 230, 240, 714 N.E.2d 867 (on appeal from conviction on capital and non-capital offenses, convictions based on verdicts on non-capital offenses erroneously entered by single judge only are reversed and cause remanded for consideration by entire three-judge trial panel which, "having already heard all of the evidence, should reconstitute itself and deliberate anew on the [non-capital] charges ***"). See, also, State v. Parker, 95 Ohio St.3d 524, 2002- Ohio-2833, 769 N.E.2d 846, syllabus (defendant charged with a crime punishable by death who has waived his right to trial by jury must, pursuant to R.C. 2945.06 and Crim.R. 11(C)(3), have his guilty plea heard and decided by a three-judge panel even if the state agrees that it will not seek the death penalty).

26. See State v. Davis (1988), 38 Ohio St.3d 361, 373, 528 N.E.2d 925 (due to error in three-judge panel's sentencingopinion, death sentence vacated and the matter remanded for resentencing, inclusive of consideration of death penalty, before the same three-judge panel convened for trial), and State v. Green (2000), 90 Ohio St.3d 352, 377, 738 N.E.2d 1208 (death sentence vacated and remanded for resentencing due to errors as to allocution rights of the defendant and in sentencing opinion).

13 Proposition of Law No. 3:

A direct appeal, not the extraordinary writ of prohibition, is the proper remedy for a claimed violation of R.C. 2945.06; if a single judge, upon a jury waiver, errs in trying a criminal case in a bench trial, accepting a guilty plea, or sentencing an offender charged with a capital offense, despite the requirement of R.C. 2945.06 that capital offenses "be tried by a court to be composed of three judges," such error in the court's exercise ofjurisdiction renders the judgment voidable and the error must be raised on direct appeal, as distinguished from a judgment which is void ab initio due to a court's lack of subject-matter jurisdiction.

This Court has repeatedly ruled that direct appeal, not an extraordinary writ, is the

sole and proper remedy for a claimed violation of the so-called "jurisdictional" requirements

of R.C. 2945.06. In Kirklin v. Enlow (2000), 89 Ohio St.3d 455, 732 N.E.2d 982, a

prisoner convicted on his guilty pleas to aggravated murder and other offenses, entered

before a single common pleas court judge, filed a complaint for a writ of prohibition to

compel the trial court to vacate his conviction and sentence for the trial court's failure to

convene a three-judge panel to take the guilty pleas; he argued that the single-judge trial

court lacked jurisdiction to convict and sentence him. Denying the writ, the Court reasoned

that "[a]n alleged violation of R.C. 2945.06 is not cognizable in an extraordinary writ action

and may be remedied only in a direct appeal from a criminal conviction," citing State ex

rel. Collins v. Leonard (1997), 80 Ohio St.3d 477, 478, 478, 687 N.E.2d 443 (claimed

violation of R.C. 2945.06 is not the proper subject for habeas corpus relief and may be

remedied only in a direct appeal from a criminal conviction). See, also, Pratts v. Hurlev,

syllabus (failure of a court to convene a three-judge panel, as required by R.C. 2945.06,

does not constitute a lack of subject-matter jurisdiction that renders the trial court's judgment void ab initio and subject to collateral attack in habeas corpus, but rather such

claimed error in the court's exercise of jurisdiction renders the trial court's judgment

14 voidable and must be raised on direct appeal), and State ex rel. Rash v. Jackson, 102

Ohio St.3d 145, 2004-Ohio-2053, at 44 8-12, 807 N.E.2d 344 (same, denial of habeas corpus affirmed with citation to Pratts and Coliins, and in addition, resjudicata barred

Rash from litigating successive habeas corpus petitions when he either did or could have raised this same claim in a previous petition or appeal). Accord, State v. Thomas. 97

Ohio St.3d 309, 2002-Ohio-6624, at 119 53-58, 779 N.E.2d 1017 (error by three-judge panel during penalty phase in referral of evidentiary matter to anotherjudge, contrary to

R.C. 2945.06, did not go to the jurisdiction of the court or render the judgment void; where defense agreed to improper procedure, issue was waived and was not plain error); see, e.g., State ex rel. Billings v. Friedland (2000), 88 Ohio St.3d 237, 724 N.E.2d

1151 [failure to comply with R.C. 2945.05 may be remedied only in a direct appeal from a criminal conviction and not by extraordinary writ of mandamus, citing State v. Pless

(1996), 74 Ohio St.3d 333, 658 N.E.2d 766, paragraph two of the syllabus]. These repeated holdings of the Court are determinative; an extraordinary writ, whether it be prohibition, habeas corpus, or mandamus, is not the proper remedy for a claimed R.C.

2945.06 violation.

15 CONCLUSION

For these reasons, this Court should affirm the judgment of the Butler County Court of Appeals denying Ketterer's request for issuance of a writ of prohibition herein.

Respectfully submitted,

ROBIN N. PIPER (0023205) Butler County Prosecuting Attorney

DANIEL G. EICHEL (0008259) First Assistant Prosecuting Attorney and Chief, Appellate Division [Counsel of Record]

/ /.ZLZ MI HAE'L A. i^'B TER (0076491) As^istant Prosecuting Attorney Government Services Center 315 High Street, 11`h Floor Hamilton, Ohio 45012-0515 Telephone: (513) 887-3474 Fax: (513) 887-3489

PROOF OF SERVICE

This is to certify that a copy of the within Brief was served upon Randall L. Porter, Counsel of Record for Appellant Ketterer, 8 East Long Street, 11`" Floor, Columbus, Ohio 43215, by ordinary U.S. mail this 5`h day of February, 2007.

DANIEL G. EICHEL (0008259) [Counsel of Record for Respondenf]

16 Westlxlw.

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H 110 Criminal Law State v. BaysOhio App. 2 Dist.,2003. I l OXXX Post-Conviction Relief CHECK OHIO SUPREME COURT RULES FOR 11 0XXX(B) Grounds for Relief REPORTING OF OPINIONS AND WEIGHT OF 110k1525 Evidence LEGAL AUTHORITY. I10k1530 Statements, Confessions, Court of Appeals of Ohio,Second District, Greene and Admissions County. 110k1530(2) k. Voluntariness. Most STATE of Ohio, Plaintiff-Appellee, Cited Cases V. Step son's and wife's testimony during Richard R. BAYS, Defendant-Appellant. postconviction evidentiary hearing that defendant No. 2003 CA 4. was smoking crack cocaine prior to confessing to aggravated robbery and aggravated murder for Decided June 20, 2003. which defendant was sentenced to death, and wife's testimony that police had encouraged her to After defendant's convictions for aggravated murder convince defendant to confess in exchange for an and aggravated assault and death penalty sentence eight-year sentence did not implicate the were affirmed by both the Court of Appeals, and the voluntariness of his confession, where step son's Supreme Court, 87 Ohio St.3d 15, the United States and wife's credibility was lacking in that, in an Supreme Court denied certiorari. Subsequently, unrelated case, wife had encouraged her son to deny defendant petitioned for postconviction relief. The involvement in a cri ne for which he had already Court of Common Pleas, Greene County, denied confessed. petition. Defendant appealed. The Court of Appeals remanded for an evidentiary hearing. On remand, 121 Criminal Law i10 C;-522(l) the trial court, following hearing, denied petition. Defendant appealed. The Court of Appeals, Wolff, 110 Criminal Law J., held that: (1) step son's and wife's testimony I IOXVII Evidence regarding defendant's alleged use of crack cocaine 110XVII(T) Confessions prior to confessing to crimes did not implicate 1 I0k522 Threats and Fear voluntariness of his confession; (2) assuming, 110k522(l) k. In General. Most Cited arguendo, that defendant had used crack prior to Cases confession, use did not implicate voluntariness of confession; (3) questions posed to wife regarding Criminal Law 110 C^526 son's unrelated criminal matter was relevant to her credibility; (4) on reinand, trial court properly I 10 Criminal Law limited scope of discovery; (5) failure of I IOXVII Evidence postconviction statute to allow for discovery did not I I OXVII(T) Confessions violate defendant's constitutional rights; and (6) trial 110k524 MentalIncapacity court did not abuse its discretion in refusing to I10k526 k. Intoxication. Most Cited allow defendant to amend his petition on reinand. Cases Assuming, arguendo, that defendant had been using Affirmed. crack cocaine prior to confessing to aggravated West Headnotes assault and aggravated murder for which defendant (11 Criminal Law I10 C^1530(2) was sentenced to death, use did not implicate the voluntariness of his confession, where officers who

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took ttie confession had not engaged in coercive to have waived his Miranda rights knowingly and conducfand any impairment was not apparent to the intelligently prior to confessing to aggravated officers. assault and aggravated murder for which defendant was sentenced to death, where the Court found, on [31 Criminal Law 110 qD=520(1) direct appeal, that as a matter of law, defendant had the mental capacity to have waived his Miranda 110 Criminal Law rights knowingly and intelligently, issue was not 1IOXVII Evidence properly raised in defendant's petition for l IOXVII(T) Confessions postconviction relief or his appeal therefrom, and 11ok520 Promises or Other Inducements the Court did not instruct the trial court to consider 110k520(I) k. In General. Most Cited issue on remand. U.S.C.A. Const.Amend. 5. Cases Assuming, arguendo, that officers encouraged wife [61 Witnesses 410 C^344(5) to convince defendant to confess to aggravated murder and aggravated assault in exchange for an 410 Witnesses eight-year sentence, fact did not render confession 4101V Credibility and Impeachment involuntary, even though defendant was sentenced 410IV(B) Character and Conduct of Witness to death for murder conviction and 20 years for 410k344 Paiticular Acts or Facts robbery conviction, where wife had told husband to 410k344(5) k. Fraud or Dishonesty. tell the truth, but she had never told him of the Most Cited Cases alleged offer of leniency. Questions posed by prosecutor to defendant's wife during evidentiary hearing on postconviction [4) Criminal Law 110 'D^1180 petition in death penalty case, regarding whether she had encouraged her son to deny his involvement 110 Criminal Law in an unrelated criminal matter, were relevant to 110XXIV Review wife's credibility, and thus, were admissible, where I IOXXI V(T) Subsequent Appeals questions explored wife's willingness to lie in I lOkl 180 k. In General. Most Cited Cases criminal proceedings to obtain a favorable outcome. Court of Appeals, on defendant's appeal of denial of postconviction relief, refused to consider issue of [7] Criminal Law 110 C-1181.5(3.1) whether trial court erred during evidentiary hearing on petition by refusing to consider evidence about 110 Criminal Law the effect of defendant's substance abuse on his I IOXXIV Review psychological functioning at time of his confession lIOXXIV(U) Determination and Disposition to aggravated assault and aggravated inurder for of Cause wltich defendant was sentenced to death, where I lOk1181.5 Remand in General; Vacation Court had found on direct appeal that trial court 110k1181.5(3) Remand for correctly concluded that the experts' findings had Determination or Reconsideration of Particular not warranted reconsideration of suppression issue. Matters 110k1181.5(3.l) k. In General. [5] Criminal Law t10 C^1180 Most Cited Cases On remand following reversal of summary denial of 110 Criminal Law defendant's postconviction petition in death penalty 110XXIV Review case, trial court properly limited scope of discovery, I l OXXIV(T) Subsequent Appeals where defendant's requests appeared to have been 11ok1180 k. In General. Most Cited Cases aimed at reopening all issues relevant to the Comt of Appeals, on defendant's appeal of second voluntariness of his confession, however, remand denial of postconviction relief, refused to consider was limited in scope to allegations of defendant's issue of whether defendant had the mental capacity drug use prior to confession to aggravated murder

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and aggravated assault, and alleged pressure abuse its discretion in refusing to allow defendant to asserted by defendant's wife to get hitn to confess. ainend his petition on remand; trial court was permitted to consider those three issues only. [81 Criminal Law 110 C^1407

1 10 Criminal Law Criminal Appeal from Common Pleas Court. I IOXXX Post-Conviction Relief I I OXXX(A) In General Robett K. Hendrix, Atty. Reg. No. 0037351, 110k1406 Nature of Remedy Assistant Prosecutor, Xenia, OH, for 110k1407 k. In General. Most Cited plaintiff-appellee. Cases Ruth L. Tkacz, Atty. Reg No. 0061508, Assistant Regardless of whether a petitioner for State Public Defender, Columbus, OH, for postconviction relief is sentenced to a period of defendant-appe I lant. confinement or to death, he receives no more rights WOLFF, J. than those granted by the postconviction remedies *1 {¶ 1} Bays appeals from the trial court's denial statute. R.C. 2953.21. of his petition for postconviction relief following an evidentiary hearing pursuant to a remand from this [9] Criminal Law 110 C^1590 court.

110 Criminal Law {¶ 2} In December 1995, Bays was found guilty I l OXXX Post-Conviction Relief by a three-judge panel in the Greene County Court 110XXX(C) Proceedings of Common Pleas of the aggravated murder and 110XXX(C)1 In General aggravated robbery of Charles Weaver, a 110k1590 k. Discovery and Disclosure. seventy-six year old acquaintance who had been Most Cited Cases confined to a wheelchair. Bays had used the stolen Defendant sentenced to death in aggravated murder money to buy crack cocaine. The evidence against case had no constitutional right to a state Bays included his confession to the police and his postconviction proceeding generally, and thus, reenactment of the crime, which the trial court failure of statute govetning postconviction remedies refused to suppress. Bays offered evidence in to provide for discovery did not violate defendant's mitigation, including testimony about his low level constitutional rights. R.C. 2953.21 of mental functioning and longstanding substance abuse, but the evidence was found to be entitled to [10] Criminal Law 110 'D=1181.5(3.1) little weight. The judges imposed a sentence of death for aggravated murder and ten to twenty-five 110 Criminal Law years for aggravated robbery. Bays appealed, and 110XXIV Review both this court and the Supreme Court of Ohio 1IOXXIV(U) Determination and Disposition affirned his conviction. State v. Bays (Jan. 30, of Cause 1998), Greene App. No. 95-CA-118, and State v. 110k1 181.5 Remand in General; Vacation Bays, 87 Ohio St.3d 15, 1999-Ohio-216. The IlOkI181.5(3) Remand for United States Supreme Court denied certiorari. Detennination or Reconsideration of Particular Bays v. Ohio (2000), 529 U.S. 1090, 120 S.Ct. Matters 1727, 146 L.Ed.2d 647. 1 l Okl I81.5(3.1) k. In General. Most Cited Cases {Q 3} In July 1996, Bays filed a petition for Defendant's appeal froin the denial of his petition postconviction relief pursuant to R.C. 2953.21. The for postconviction relief from murder conviction for trial court disinissed the petition without a hearing, which death penalty was itnposed resulted in a and Bays appealed. We concluded that Bays' remand for the trial comt to conduct a hearing on evidentiary documents had warranted a hearing on " three discrete issues, and tltus, the trial coutt did not his allegations concerning his trial counsel's

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ineffectiveness in having failed to present witnesses this assigninent of error. and other evidence during the defendant's case-in-chief and in having failed to call Bays' wife, {¶ 8} At the hearing on the petition for Martha, and her son, Scott, as witnesses during the postconviction relief, Bays' stepson, Ryan Scott suppression hearing and during the guilt phase of Pleukharp, testified that he had seen Bays using the trial:" We remanded the case to the trial court crack cocaine in the bathroom at their house just for an evidentiary hearing. State v. Bays (Jan. 30, before the police arrived to take him in for 1998), Greene App. No. 96-CA-118. questioning on November 19, 1993. Bays confessed to Weaver's murder a short time later. Bays' wife {¶ 4} At the evidentiary hearing, Martha Bays partially corroborated Pleukharp's testimony by testified that police officers had pressured her to testifying that Pleukharp had told her of his convince Bays to confess in exchange for an observation the next day. Martha Bays also testified eight-year sentence. According to Martha Bays, she that she had later found drug paraphernalia on the subsequently told Bays to tell the police what had ledge above the bathroom door. Martha Bays happened, but she did not tell him about the offer of claitned that she had relayed all of this information leniency. Martha Bays' son testified that he had seen to Bays' attorney at their first meeting but that he Bays using crack cocaine shortly before he had not used it at the suppression hearing. confessed to the police. Bays offered some other evidence about the motives of an inmate who had {¶ 9} The trial court found the testimony of testified against him as well. After the hearing, the Pleukharp and Martha Bays to be lacking in trial court concluded that Bays' evidence had not credibility, and, in our view, this conclusion was a been credible, and it again denied the petition for reasonable one. On cross-examination, Martha Bays postconviction relief. appeared to concede that, in an unrelated case, she had encouraged her son to deny involvement in a {¶ 5} Bays raises five assignments of error on crime to which he had already confessed. Moreover, appeal from the most recent denial of his petition. it had been determined in earlier proceedings in this case that the police had not engaged in coercive {¶ 6} "I. THE TRIAL COURT ERRED BY NOT conduct and that any alleged impairment on Bays' GRANTING RELIEF ON APPELLANT'S part was not apparent to the officers. See Bays, 87 POSTCONVICTION PETITION, WHERE THE Ohio St.3d 15, 23, 1999-Ohio-216. Even if Bays EVIDENCE ADDUCED AT THE had used crack cocaine at the time alleged, the EVIDENTIARY HEARING, IN CONJUNCTION voluntariness of his confession was not implicated if WITH HIS POSTCONVICTION PETITION the police officers did not know of and take EXHIBITS, SHOWED THAT APPELLANT WAS advantage of that fact. State v.. Smith, 80 Ohio DENIED HIS SIXTH AMENDMENT RIGHT TO St.3d 89, 112, 1997-Ohio-355, citing Colorado v. EFFECTIVE ASSISTANCE OF TRIAL Conne!!y (1986), 479 U.S. 157, 107 S.Ct. 515, 93 COUNSEL." L.Ed.2d 473.

*2 [1][2][3] {¶ 7} Bays claims that trial counsel {¶ 10} Bays also offered testiinony from his wife was ineffective in addressing several issues at his that police officers had encouraged her to convince suppression hearing and at trial: his drug use and Bays to confess in exchange for an eight-year borderline intellect as affecting the voluntariness of sentence. As discussed supra, the trial court could his confession, his drug use shortly before his have reasonably concluded that Martha Bays' confession, coercion of his wife to get Itim to testimony lacked credibility. However, even if her confess, and the credibility of an inmate who testimony had been credible, Martha Bays conceded testified against him. General evidence regarding that, although she had told her husband to tell the Bays' dtug use and bo-derline intellect has been police the truth, she had never told him of the thoroughly addressed in prior proceedings. We will alleged offer of leniency prior to his confession. As briefly address each of the other issues raised under such, there is no likeliltood that this evidence would

0 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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have affected the outcoine of a suppression hearing the circumstances surrounding the cottfession. He on the voluntariness of Bays' confession, and also claims that the state improperly attempted to counsel was not ineffective in failing to present it, impeach his wife by asking her questions about a case involving her son. Bays presented the {¶ 11} Finally, Bays contends that his attorney testimony of three experts on neuropsychology and was ineffective in failing to present the testiniony of chemical dependency in the mitigation phase of his Richard Henson, Jr. about a fellow inmate, Larry trial. On direct appeal, we considered whether the Adkins. Adkins had testified at Bays' trial that Bays trial court ought to have also considered the had admitted to Adkins his involvement in Weaver's testimony of these experts at a second suppression murder. At the evidentiary hearing, Henson testified hearing. The comt had refused to do so. We found that Adkins had talked with him about his plan to that the trial court had coirectly concluded that the get a deal from the state in exchange for testifying experts' findings had not warranted reconsideration against Bays. Henson further testified that he had of the suppression issue. We also expressly found, " not been interviewed by Bays' attorney prior to trial as a matter of law, [that] Bays had the mental and, although present at the courthouse, had not capacity to have waived his Miranda rights been called to testify on Bays' behalf. Even if we knowingly and intelligently." This issue was not assume, for the sake of argument, that Bays' properly raised in Bays' petition for postconviction attorney should have interviewed Henson and did relief or his appeal therefrom, and we did not not do so, we would nonetheless conclude that instruct the trial court to consider this issue on counsel did not act ineffectively. Henson's remand. For these reasons, we will not consider this testimony did not suggest that Adkins' statements argument at this time. were untruthful, only that he hoped to get a favorable deal from revealing his conversations [6] {¶ 15} Bays also contends that the trial court with Bays. In other words, Henson's testimony impermissibly allowed the prosecutor to comment related to Adkins' inotivation in coining forward but upon the case involving Martha Bays' son at the not the truthfulness of his statements. As such, we evidentiary hearing on remand. The prosecutor are confident that Henson's testimony would not questioned whether Martha Bays had encouraged have affected the outcome of the trial. her son to deny his involvement in a crime in which he had been prepared to admit his role. The *3 {¶ 12} The first assignment of error is prosecutor pursued this questioning in order to overruled. challenge the veracity of Maitha's Bays' statements in support of her husband. Bays contends that this {¶ 13} "II. THE TRIAL COURT ERRED BY line of questioning was irrelevant and "implied that LIMITING THE SCOPE OF THE EVIDENTIARY an accused does not have the right to contest the HEARING AND BY NOT ALLOWING charges the state has brought against him." We RELEVANT TESTIMONY FROM disagree. The questions explored Martha Bays' APPELLANT'S EXPERT WITNESS, WHO willingness to lie in criminal proceedings to obtain a WOULD HAVE SUPPORTED APPELLANT'S favorable outcome and was therefore relevant to the GROUNDS FOR RELIEF, AND, FURTHER, BY credibility of her testimony. ALLOWING IMPROPER IMPEACHMENT ON CROSS-EXAMINATION, THUS VIOLATING {¶ 16} The second assign nent of error is APPELLANT'S RIGHT TO AN ADEQUATE overruled. STATE CORRECTIVE PROCESS." {¶ 17} °III. THE TRIAL COURT ABUSED ITS [4][5] {¶ 14} Bays claims that the trial court's DISCRETION BY NOT ALLOWING refusal to consider evidence about the effect of Itis PETITIONER TO CONDUCT COMPLETE substance abuse on his psychological functioning at DISCOVERY BEFORE THE EVIDENTIARY the time of his confession was unreasonable because HEARING." the court was supposed to consider the totality of

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[7] {¶ 18} Bays argues that the trial court abused [10] {¶ 23) Bays contends that the trial court its discretion by limiting liis right to discovery should have permitted him to amend his petition during the postconviction proceedings. Bays sought because he had an absolute right to do so until a a wide range of information related to the responsive pleading was filed. He claims that the circumstances of his confession. state never filed a responsive pleading. The parties disagree as to whether Civ.R. 15 or R.C. 2953.21(F) {¶ 19} This court and the Supreme Court of Ohio controls the amendment process. considered the voluntariness of Bays' confession on direct appeal and found that Bays had not been {¶ 241 Bays filed a motion to amend his petition coerced into making a confession. Much of the five days after the trial court's initial decision on his information sougltt by Bays in discovery was not petition for postconviction relief. The trial court narrowly tailored to the issues on remand, which denied that motion while Bays' appeal of the denial were primarily related to his alleged drug use of his petition was pending. In our opinion, we shortly before the November 19, 1993 confession questioned whether we had jurisdiction to consider and the alleged pressure asserted on Bays' wife to the denial of the motion to amend because it had get him to confess. Rather, Bays' discovery requests been filed after the notice of appeal was filed. We appeared to have been aimed at reopening all issues noted, however, that the trial court did not abuse its relevant to the voluntariness of his confession. This discretion in denying a motion that was filed after is clearly not what we intended on remand, and the its decision had been rendered. See Bays, (Jan. 30, trial court properly barred such discovery. 1998), Greene App. No. 96-CA-118.

*4 [8][91 {¶ 20) We further note that R.C. 2953.21 {¶ 25) As discussed supra, Bays' 1996 appeal governs the trial court's jurisdiction, and the statute fron the denial of his petition for postconviction does not confer upon the trial court the power to relief resulted in a remand for the trial court to conduct and compel discovety under the Civil conduct a hearing on three discrete issues. The trial Rules. State v. Dean, 149 Ohio App.3d 93, 95-96, court was permitted to consider those issues only. 2002-Ohio-4203, at ¶ 10; State v. Lundgren (Dec. Accordingly, the trial court did not abuse its 18, 1998), Lake App. No. 97-L-I10. Regardless of discretion in refusing to allow Bays to amend his whether a petitioner for postconviction relief is petition on remand, and we need not address sentenced to a period of confinentent or to death, he whether the rule or the statute would have governed receives no more rights than those granted by R.C. such an amendment. 2953 .21. Thus, we reject Bays' argument tltat, because this was a death penalty case, he was {¶ 261 The fourth assignment of error is overruled. entitled to more due process. The statute's failure to provide for discovery does not violate Bays' {¶ 27) "V. CONSIDERED TOGETHER, THE constitutional rights because he ltas no CUMULATIVE ERRORS SET FORTH IN constitutional right to a state postconviction APPELLANT'S SUBSTANTIVE GROUNDS FOR proceeding generally. See State v. Frcinklin, RELIEF MERIT REVERSAL OR REMAND FOR Montgomery App. No. 19041, 2002-Ohio-2370, at A PROPER POSTCONVICTION PROCESS" 161. {¶ 28) Because we have found no error in the trial {¶ 21 } The third assignment of error is overruled. court's decision, we likewise find no cumulative error. The fifth assignment of error is overruled. {¶ 221 "IV. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT ALLOWING *5 {¶ 29} The judgntent of the trial court will be PETITIONER TO AMEND HIS affirmed. POSTCONVICTION PETITION SO THAT IT CONFORMED TO THE EVIDENCE AFTER FAIN, P.J. and BROGAN, J., concur. THE EVIDENTIARY HEARING." Ohio App. 2 Dist.,2003.

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State v. Bays Not Reported in N.E.2d, 2003 WL 21419173 (Ohio App. 2 Dist.), 2003 -Ohio- 3234

END OF DOCUMENT

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H Ohio St.3d 361. State v. DavisOhio App. 12 Dist.,1996.Only the Westlaw citation is currently available. A three-judge panel again imposed a death CHECK OHIO SUPREME COURT RULES FOR sentence, which was affirmed by this court and the REPORTING OF OPINIONS AND WEIGHT OF Ohio Supreme Court. State v. Davis (Oct. 29, LEGAL AUTHORITY. 1991), Butler App. No. CA89-09-123, unreported; Court of Appeals of Oliio, Twelfth District, Butler State v. Davis (1992), 63 Ohio St.3d 44. County. Appellant's motions for rehearing were denied by STATE of Ohio, Plaintiff-Appellee, the Ohio Supreme Court and his motion for v. certiorari was denied by the United States Supreme Von Clark DAVIS, Defendant-Appellant. Court. State v. Davis (1992), 506 U.S. , 113 S.Ct. CASE NO. CA95-07-124 172.

Sept. 30, 1996. O11 October 8, 1993, appellant filed petitions pursuant to R.C. 2953.21 to vacate or set aside appellant's convictions and/or sentences in the 1983 John F. Holcomb, Butler County Prosecuting trial for Suzanne Butler's murder and the 1971 trial Attomey, Daniel G. Eichel, 216 Society Bank for the murder of Ernestine Davis. The state Building, Hamilton, Ohio 45011, for subsequently filed a motion to dismiss pursuant to plaintiff-appellee R.C. 2953.21(C). The trial court filed an entry on Linda E. Prucha and Tracey A. Leonard, Ohio November 1, 1994, concluding that res judicata Public Defender's Office, 8 East Long Street, llth was applicable to a post-conviction action. The Floor, Columbus, Ohio 43266-0587, for court granted the state's motion to dismiss as to defendant-appellant twenty-seven of the twenty-eight causes of action raised in appellant's petition. OPINION KOEHLER, J. An evidentiary hearing was held on appellant's *1 Petitioner-appellant, Von Clark Davis, appeals nineteenth cause of action, in which appellant from the judgment entry of the Butler County Coutt alleged that his jury trial waiver was unknowing of Common Pleas dismissing his petition for because he was not informed that two judges on the post-conviction relief. three-judge panel had represented a mortgage company in a 1970 foreclosure action against In 1971, appellant entered a guilty plea to second appellant. Following the hearing, the trial court degree murder in connection with the stabbing filed a judgment entry on June 30, 1995 dismissing death of his estranged wife, Ernestine Davis, and appellant's post-conviction relief petitions. rN L was sentenced to life imprisonment. In 1984, Appellant appeals from that entry, raising appellant was found guilty by a tltree judge panel of twenty-one assignments of error. the aggravated murder of Suzette Butler and sentenced to death. This court affirmed the conviction and sentence. State v. Davis (May 27, FNI. Appellant filed two petitions for 1987), Butler App. No. CA84-06-071, unrepoited. post-conviction relief; the two cases were The Ohio Supreme Court affirmed the conviction joined for purposes of this appeal. but vacated the death sentence and remanded the case for resentencing. State v. Davis (1988), 38

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RESJUDICATit AS APPLICABLE "I'O AN are raised by appellant as separate assigninents of ORDER OF DISMISSAL ON A error in this appeal, but all were disinissed by the POST-CONVICTION RELIEF PETITION trial court as claitns which were or could have been raised at trial or on direct appeal without evidence dehors the record and therefore batTed by res Assignment of Error No. 1: judicata. We will examine each issue individually THE TRIAL COURT ERRED WHEN IT DENIED in appellant's subsequent assignments of ennr to APPELLANT DAVIS AN EVIDENTIARY determine if sufficient evidentiary material was set HEARING BASED ON THE DOCTRINE OF RES forth to warrant a hearing. See State v. Jac•kson JUDICATA, THUS VIOLATING HIS RIGHTS (1980), 64 Ohio St.2d 107 (criminal defendant UNDER THE FIFTH, SIXTH, EIGHTH, NINTH carries burden to provide sufficient evidence to AND FOURTEENTH AMENDMENTS TO THE warrant a hearing on a post-conviction relief UNITED STATES CONSTITUTION AND petition). ARTICLE I, SECTIONS 1, 2, 9, 10, 16, AND 20 OF THE OHIO CONSTITUTION. As a threshold issue, appellant argues within his first assignment of error that the state cannot assert Appellant argues that because his post-conviction res judicata as a defense. Appellant contends that relief petition was supported by evidence outside the state's motion to dismiss is governed by Civ.R. the record, his right to due process of law was 12(B)(6), which specifies defenses that may be violated by the trial court's dismissal of his petition raised by motion and does not mention res judicata. without a hearing. Appellant also argues that res judicata cannot bar a post-conviction relief claim supported by *2 When a R.C. 2953.21 petition is filed, a court evidence outside the record. We disagree. must grant a hearing unless it determines that the petitioner is not entitled to relief. R.C. 2953.21(E); Although an action for post-conviction relief is civil State v. Combs (1994), 100 Ohio App.3d 90, 97. in nature, the post-conviction remedy is statutory The court may refuse to grant a hearing if the claim and govemed by R.C. 2953.21. State v. Darden does not raise a constitutional issue or if a (1989), 64 Ohio App.3d 691, 693. "Where a constitutional claim is advanced but the issue was or petition for post-conviction relief filed by counsel could have been raised at trial or on direct appeal. for a prisoner does not allege facts which, if proved, Combs, 100 Ohio App.3d at 97, citing State v. Perry would entitle the prisoner to relief, the trial court (1967), 10 Ohio St.2d 175. may so find and suinmarily dismiss the petition." State v. Perry (1967), 10 Ohio St.2d 175, paragraplt Even if outside evidence is offered in support of a two of the syllabus. post-conviction relief petition, the court may deny a hearing if the petitioner could have appealed the Fuither, the Ohio Supreme Court in State v. Lester constitutional claim based on information in the (1975), 41 Ohio St.2d 51, 55, held that "if the trial original trial record. Id. In addition, a hearing is court finds, on the facts of a case, that a petitioner's not compelled where the evidence does not meet a claim was fully litigated at trial or upon appeal, or minimum level of cogency to support a claim, or that the claim could have been fully liti gated in an passes the inininum threshold but fails to forn appeal, the court can sunnarily dismiss the claim substantive grounds for relief. Id at 98. Finally, as barred by res judicata." the court may deny a hearing where the claim does not seek to render the trial court's judg nent void or *3 We find that the trial court did not err voidable. Id. procedurally in applying the doctrine of res judicata or in entering an order of dismissal on a petition for Appellant raises specific claims where he contends post-conviction relief. Appellant's first assignnent that outside evidence compelled the trial court to of error is overruled, and we proceed on to hold an evidentiary hearing. Each of these clainis appellant's specific claims, each of which were

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This letter was time-stainped for the record by the for resentencing, the appellattt "was not entitled to clerk's office in 1981, prior to the Suzette Butler an oppottunity to iniprove or expand his evidence in shooting. Upon receipt of the letter, Bressler filed nitigation simply because we required the trial a motion for a new trial in the earlier case, which court to reweigh the aggravating circumstance[s] was denied. Appellant's trial counsel's strategy in and mitigating factors." this case regarding the prior homicide conviction, as the basis of an ineffective assistance claim, was not In this case, although appellant advances a raised on the direct appeal and is barred by res constitutional claim, the issue of additional judicata. See Lentz, 70 Ohio St.3d at 527. mitigating evidence was raised at the resentencing and on appeal from the resentencing and is Appellant's third, thirteenth and nineteenth therefore barred by res judicata. See Combs, 100 assignments of error are overruled. Ohio App.3d at 97.

Appellant's fourth, seventeenth, and twentietlt assignments of error are overruled.

ItNTRODUCTION OF MITIGATION EVIDENCE AT THE RESENTENCING IV.

IMPROPER REBUTTAL EVIDENCE Assignment of Error No. 4: INTRODUCED DURING THE PENALTY THE TRIAL COURT ERRED BY GRANTING THE PROSECUTOR'S MOTION TO DISMISS PHASE OF THE CAPITAL TRIAL AS TO PETITIONER-APPELLANT'S SIXTH CAUSE OF ACTION. Assignment of Error No. 17: THE TRIAL COURT ERRED WHEN IT "5 Assignment of Error No. 15: DISMISSED APPELLANT DAVIS' THE TRIAL COURT ERRED WHEN IT TWENTY-FIFTH CLAIM. DISMISSED APPELLANT DA V IS' Assignment of Error No. 20: TWENTY-THIRD CLAIM. THE TRIAL COURT ERRED BY GRANTING THE PROSECUTOR'S MOTION TO DISMISS Appellant argues that the trial court permitted AS TO PETITIONERAPPELLANT'S improper rebuttal testimony from a police detective TWENTY-EIGHTH CAUSE OF ACTION. regarding a shoot-to-wound incident involving appellant and his wife Emestine in 1969 which was not sufficiently related to Ernestine's murder over The Ohio Supreme Court, in remanding appellant's one year later. Appellant also argues that the state case for resentencing, found that the trial court had brought in specific fact evidence of the prior murder improperly weighed the aggravating circumstances at the penalty phase, although the crime was already against the tnitigating factors it found to be present. established during the guilt phase. Appellant Appellant argues that the trial court's refusal on concludes that these instances violate Eighth resentencing to consider additional mitigating Ainendment standards that death sentences be evidence or grant appellant's request for funding of imposed with faimess and consistency. expert assistance violated appellant's statutory and constitutional rights. Appellant advances no evidence outside the record to support his arguments. The admission of the The Second District Court of Appeals in State v. above testimony was an evidentiary issue whiclt was Chinn (June 21, 1996) Montgomery App. No. resolved against appellant at trial. Although CA15009, unreported, concluded that on a remand appellant advances his claim as a constitutional

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dismissed by the trial court. appellant was represented by new counsel on the direct appeal, appellant did not raise the claim of ineffective assistance of trial counsel. Evidence 11. outside the record does not overcome the res judicata bar on postconviction litigation of issues INEFFECTIVE ASSISTANCE OF COUNSEL which were or should have been raised on the direct appeal based on the original trial record. State v. Perry (1967), 10 Ohio St.2d 175. Assignment of En-or No. 3: THE TRIAL COURT ERRED BY GRANTING Appellant also argues that counsel was ineffective THE PROSECUTOR'S MOTION TO DISMISS because appellant's right to a,jury trial was waived AS TO PETITIONERAPPELLANT'S FIFTH without reserving the option to withdraw the waiver CAUSE OF ACTION. should the three-judge panel return a death penalty. Assignment of Error No. 13: Because appellant could also have raised this claim THE TRIAL COURT ERRED BY GRANTING on direct appeal, it is barred by res judicata. See THE PROSECUTOR'S MOTION TO DISMISS Combs, 100 Ohio App.3d at 97. AS TO PETITIONERAPPELLANT'S TWENTY-FIRST CAUSE OF ACTION. Even had appellant raised this issue on direct Assignment of Error No. 19: appeal, as the trial court observed, this same issue THE TRIAL COURT ERRED BY GRANTING was considered in State v. Brewer (Sept. 28, 1994), THE PROSECUTOR'S MOTION TO DISMISS Greene App. No. 93-CA-62, unreported, where that AS TO PETITIONER APPELLANT'S court noted that "[n]o prosecutor would agree to TWENTY-SEVENTH CAUSE OF ACTION. such an arrangement, and to impose such a duty on defense counsel in capital cases would have the practical effect of removing a defendant's right to be Appellant argues first that his representation by trial judged by a three-judge panel." counsel was constitutionally defective because he was not advised prior to waiving a jury trial that *4 Appellant also argues that his trial counsel failed when a case is tried before a three-judge panel, it is to adequately investigate the circumstances presumed on appeal that the trial court considered surrounding appellant's prior murder conviction for only relevant, material, and competent evidence in the death of his wife Ernestine, in that they failed to arriving at its judgment. See State v. Simko (1994), discover evidence that the prior killing was not 71 Ohio St.3d 483, 491 (citation omitted). purposeful, which they could have used to challenge Appellant submitted an affidavit from attorney the death penalty specification in this case.FN2 Harry Reinhart stating that a trial counsel's failure to advise a capital defendant of this fact evidences unreasonable professional judgment. FN2. Appellant's prior murder conviction was used as an aggravating circumstance In State v. Lentz (1994), 70 Ohio St.3d 527, 530, in his subsequent aggravated murder the Ohio Supreme Court held that when a defendant conviction. is represented by new counsel on the direct appeal, res judicata bars an ineffective assistance of trial The evidence appellant refers to is a letter from counsel claim raised for the first time in a petition Robert Jones Beard to H.J. Bressler, appellant's trial for post-conviction relief wlten the claim could have counsel in the prior case. Beard sent the letter been raised on direct appeal without evidence eight years after the prior hoinicide and stated that outside the record. he had been in the house that day, saw the confrontation between appellant and his wife, that In this case, appellant raises this issue for the first appellant's wife was the aggressor, and appellant titne in this post-conviction petition. Although had no intention of killing her.

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issue in his post-conviction relief petition, the Ohio VI. Supreme Court in State v. Perry (1967), 10 Ohio St.2d 175, paragraph seven of the syllabus, held that: DEATH SENTENCE INAPPROPRIATE Constitutional issues cannot be considered in post-conviction proceedings under Section 2952.21 et seq., Revised Code, where they have already Assignment of Error No. 5: been or could have been fulfy litigated by the THE TRIAL COURT ERRED BY GRANTING prisoner while represented by counsel, either before THE PROSECUTOR'S MOTION TO DISMISS his judgment of conviction or on direct appeal from AS TO PETITIONERAPPELLANT'S EIGHTH that judgment[.] CAUSE OF ACTION. Ass ignment of Error No. 6: Appellant's fifteenth assignment of error is THE TRIAL COURT ERRED WHEN IT overruled. DISMISSED APPELLANT DAVIS' ELEVENTH CAUSE OF ACTION. Assignment of Eror No. 8: V. *6 THE TRIAL COURT ERRED IN DISMISSING APPELLANT'S SIXTEENTH CAUSE OF PRESUMPTION OF HARMLESS ERROR ACTION. BEFORE A THREE-JUDGE PANEL Assignment of Error No. 18: THE TRIAL COURT ERRED BY GRANTING THE PROSECUTOR'S MOTION TO DISMISS Assignment of Error No. 7: AS TO PETITIONERAPPELLANT'S THE COURT ERRED IN DISMISSING TWENTY-SIXTH CAUSE OF ACTION. APPELLANT DAVIS' FIFTEENTH CAUSE OF ACTION. First, appellant argues that the death sentence was Appellant argues that the presumption that a inappropriate in this case because the mitigating three-judge panel considers only proper and evidence outweighed the aggravating factors. competent evidence unless there is an affirmative Appellant contends that the trial court failed to give demonstration to the contrary denied appellant due the proper weight to evidence of appellant's process and equal protection. personality disorder.

This presumption is applied at the appellate level Evidence of appellant's personality disorder was and is not used in the trial court. State v. Simko specifically enumerated as a mitigating factor in the (Jan. 20, 1993), Lorain App. No. 91CA005214, trial court's opinion on resentencing, where that unreported. See State v. Murnahan (1992), 63 court concluded that the mitigating factors were Ohio St.3d 60, 63 (a trial court is not empowered to outweighed by the aggravating circumstance. This render an appellate court decision void or voidable). court, on the appeal from resentencing, considered Although appellant advances a constitutional the issue of whether the death sentence was argument here, the issue could have been raised on appropriate in this case and concluded that it was. a motion for reconsideration to this court or to the Thus, the issue has already been raised and Ohio Supreme Court on appeal from the determined, and for purposes of post-conviction resentencing, based upon information contained in relief is barred by res jttdicala. See ContGs, l00 the record. This court has no jurisdiction in a Ohio App.3d at 97. post-conviction proceeding to consider appellant's claim. See Murnahan, 63 Ohio St.3d at 63; Next, appellant argues that the Ohio trial courts' Combs, 100 Ohio App.3d at 97. Appellant's failure, in general, to file written opinions in cases seventh assignment of error is overruled. where life sentences are itnposed, skews appellate proportionality review in favor of the death penalty.

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Post-conviction relief is not a proper vehicle to Assignntent of En-or No. 2: raise this clai n, as the proportionality review is THE TRIAL COURT ERRED WHEN IT conducted at the appellate level and a trial court is DISMISSED APPELLANT DAVIS' THIRD not empowered to render an appellate court CAUSE OF ACTION. decision void or voidable. Murnahan, 63 Ohio Assignment of Error No. 9: St.3d at 63. THE TRIAL COURT ERRED IN DISMISSING APPELLANT DAVIS' SEVENTEENTH CAUSE In addition, the Ohio Supreine Court has considered OF ACTION. and rejected the argument that a trial court must file Assignment of Etror No. 10: a written opinion when imposing a life sentence, THE TRIAL COURT ERRED BY GRANTING and that the proportionality requirement is flawed THE PROSECUTOR'S MOTION TO DISMISS because life sentences are not inclttded in the AS TO PETITIONERAPPELLANT'S review. State v. Steffen ( 1987), 31 Ohio St.3d. 111, EIGHTEENTH CAUSE OF ACTION. paragraph one of the syllabus; State v. Holnzes Assigntnent of Error No. 11: (1986), 30 Ohio App.3d 26. Appellant's argument THE TRIAL COURT ERRED WHEN IT is not well-taken. DISMISSED APPELLANT DAVIS' NINETEENTH CAUSE OF ACTION, IN Next, appellant argues that R.C. 2929.03(D) is VIOLATION OF HIS RIGHTS GUARANTEED unconstitutional because is it unclear on the BY THE FIFTH, SIXTH, EIGHTH AND standard of proof in mitigation hearings before a FOURTEENTH AMENDMENTS TO THE three-judge panel and therefore permits variation in UNITED STATES CONSTITUTION AND the imposition of death sentences. This argument SECTIONS 5, 9, AND 16 OF ARTICLE I OF THE was rejected in State v. Dickerson (1989), 45 Ohio OHIO CONSTITUTION. St.3d 206, 208-209. Further, since appellant could Assignment of Etror No. 12: have raised this issue on direct appeal, the doctrine THE TRIAL COURT ERRED BY GRANTING of res judicata bars post-conviction consideration. THE PROSECUTOR'S MOTION TO DISMISS See Combs, 100 Ohio App.3d at 97. AS TO PETITIONERAPPELLANT'S TWENTIETH CAUSE OF ACTION. Next, appellant argues that the elemeot of intent is lacking from the prior inurder specification, rendering it invalid for use to make appellant First, appellant argues that the trial court's refusal to eligible for the death penalty in this case. The sever the two charges in the indictment would have Robert Beard Jones letter on which appellant bases put the ele nent of appellant's prior inurder his claim was the basis for a 1981 motion for new conviction before a jury, so that appellant trial, which was denied in the prior criminal case. effectively had no choice but to waive his right to a This issue could have been raised by appellant at jury trial. This issue was raised and addressed by trial or on direct appeal and is batTed by res this court and the Ohio Supreme Court on the direct judicata. See Perry, 10 Ohio St.2d at paragraph appeal and thus is barred by res judicata. See seven of the syllabus. Combs, 100 Ohio App.3d at 97.

*7 Appellant's fifth, sixth, eighth, and eighteenth Next, appellant argues that his jury trial waiver was assignments of error are overruled. unknowing because he was not informed that under R.C. 2929.03(D), there is "an increased risk of being sentenced to death when tried before a VII. three-judge panel." Appellant contends that the state has a lesser burden of proof when a JURY TRIAL WAIVER three-judge panel cletermines the sentence as opposed to when a trial court determines wltether to accept ajuty recominendation.

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As we previously noted, the Ohio Supreme Comt A trial court nust insure that the accused's decisioo held in Dickerson, 45 Ohio St.3d at 208-209, that to waive the right to a jury trial and elect to be tried the standard of proof is the same before a before a three-judge panel is made with sufficient three-judge panel and a jury. This is an issue that awareness of the relevant circumstances and likely could have been raised on direct appeal, however, consequences of his waiver. State v. Ruppert and is barred from post-conviction consideration on (1978), 54 Ohio St.2d 263, 271 (citation omitted). res judicata grounds. See Combs, 100 Ohio In State v. D'Ambrosio (1993), 67 Ohio St3d 185, App.3d at 97. after D'Ambrosio waived his right to a jury trial, one judge on the three-judge panel presided over Next, appellant argues that he was misinformed as the murder trial of another defendant in tlte case. to the standard of proof in the colloquy with the As a result, D'Ambrosio argued on appeal that his trial court regarding appellant's jury waiver. jury trial waiver was neither knowing nor Appellant states that there was no mention of intelligent. Id at 189. reasonable doubt in the standard by which a jury would assess his guilt. Further, appellant argues The Ohio Supreme Court held that D'Ambrosio's that he was prejudiced by the trial court's statement waiver was not retroactively rendered invalid by the that the three-judge panel would have to be judge's involvement in the other defendant's case. convinced of appellant's guilt or innocence beyond Id. The court found no evidence that because of the a reasonable doubt, because the court should have prior proceeding, the judge had "formed an opinion spoken in terrns of the state's burden of proof as to the facts at issue in the subsequent proceeding. instead. " Id. at 189 (citation omitted). The court concluded that since the judge's knowledge The trial court's colloquy with a defendant stetnmed from the judge's involvement in a prior regarding his jury waiver was the subject of a proceeding, it created no personal bias that would post-conviction claim in State v. Brewer (Sept. 28, impact his participation in the three-judge panel in 1994), Greene App. No. 93CA62, unreported. We D'Ambrosio's case. Id. at 188. agree with that court's conclusion that *8 any question concerning the sufficiency of the In this case, at the time of appellant's trial, neither trial court's colloquy * * * regarding the jury waiver the two judges in question nor appellant had any could have been fully and fairly litigated on direct recollection of the judges' involvement in the 1970 appeal from [the appellant's] conviction without foreclosure action. In addition, at the hearing on resort to evidence dehors the record. * * * Since appellant's post-conviction claim, the trial court the sufficiency of the trial court's colloquy * * * concluded that as a factual matter it did not believe conceming the jury waiver could have been appellant's claim that had he been aware of the determined from the trial record itself, [the foreclosure infortnation, he would not have waived appellant's] claim is barred by the principles of res ajury trial. judicata. Upon consideration of the foregoing factors, we are not persuaded that appellant's postwaiver awareness Next, appellant argues that his jury waiver was not of the judges' foreclosure involvement rendered knowing and intelligent because he was unaware appellant's jury waiver unknowing or unintelligent that Judges Stitsinger and Moser had represented so as to implicate appellant's constitutional rights. appellant's mortgage company in a 1970 foreclosure See Dickerson, 45 Ohio St.3d at 209-210; action against appellant. The trial court found this D'Ambrosio, 67 Ohio St.3d at 189. claim to be dehors the record and held an evidentiary hearing on the tnatter. The trial court Next, appellant atgues that his jury waiver was concluded that appellant failed to demonstrate an invalid because it was obtained in violation of his infringement of his constitutional rights regarding constitutional rights. Appellant argues that he was thejury waiver and dismissed the claim. forced to waive the jury trial because the trial

(D 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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Not Reported in N.E.2d, 1996 WL 55 L432 (Ohio App. L2 Dist.) (Cite as: Not Reported in N.E.2d)

court's refusal to sever the counts tneant that DEFENSE WITNESS NOT ALLOWED TO appellant's prior murder conviction would be put TESTIFY before the jury. Assignment of EiTor No. 16: THE TRIAL COURT ERRED BY GRANTING *9 The issue of the trial court's denial of appellant's THE PROSECUTOR'S MOTION TO DISMISS motion to bifurcate the trial was raised before this AS TO PETITIONER-APPELLANT'S court and the Ohio Supreme Court on direct appeal. TWENTY-FOURTH CAUSE OF ACTION. The claim is therefore barred from post-conviction consideration by res judicata. See Combs, 100 Ohio App.3d at 97. The defense in this case proffered the testimony of Elbert Avery, that although Avery did not witness Appellant's second, ninth, tenth, eleventh, and the shooting, he arrived directly after and was told twelfth assignments of error are overruled. by Anthony Ferguson, the state's witness, that Ferguson heard a shot, ducked between two cars, and did not see who was doing the shooting. VIII. Appellant argues that Avery's testimony was offered IDENTIFICATION PROCEDURE to impeach Ferguson by a prior inconsistent statement attd that appellant's constitutional rights were violated by the trial court's refusal to allow Assignment of Error No. 14: Avery to testify. Again, this claim could have been THE TRIAL COURT ERRED BY GRANTING raised on direct appeal, based on the original trial THE PROSECUTOR'S MOTION TO DISMISS record, and is barred by res judicata. See Combs, AS TO PETITIONER-APPELLANT'S 100 Ohio App.3d at 97. Appellant's sixteenth TWENTY-SECOND CAUSE OF ACTION. assignment of error is overruled.

Appellant argues that the identification procedure in this case was unnecessarily suggestive in that a X. state's witness and a defense witness were each shown only one photo, the photo being that of FIFTY PAGE BRIEF LIMIT appellant. Appellant contends that the reliability of Assignment of Error No. 21: the witnesses' later in-court identification was APPELLANT DAVIS HAS BEEN DENIED THE undermined by the prior photo identification OPPORTUNITY FOR AN ADEQUATE APPEAL procedure. IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH Appellant further contends that there were AMENDMENT. inconsistencies between the two witnesses' testimony which also undermined the reliability of the state's witness. These claims are not based on Appellant requested leave to file a one-hundred fifty evidence outside the record and could have been page brief in this matter. This court, in the exercise raised at trial or on direct appeal. Our of its discretion, determined that the matters to be consideration of the claims at the post-conviction raised could be adequately addressed in the fifty stage is barred by res judicata. See Combs, 100 pages permitted.FN3 See State v. Bonnell (1991), Ohio App.3d at 97. Appellant's fouiteenth 61 Ohio St3d 179, 185; State v. Powell (1993), 90 assigninent of error is overruled. Ohio App.3d 260, 271. Appellant's twenty-first assignment of error is overruled.

IX. FN3. We have reviewed the nine

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Not Reported in N.E.2d, 1996 WL 551432 (Ohio App. 12 Dist.) (Cite as: Not Reported in N.E.2d)

assignments of error raised in the appendix to appellant's brief and conclude that each was properly dismissed by the trial court on res judicata grounds.

*10 Thejudgment of the trial court is affirmed.

WALSH, P.J., and POWELL, J., concur. Ohio App. 12 Dist.,1996. State v. Davis Not Reported in N.E.2d, 1996 WL 551432 (Ohio App. 12 Dist.)

END OF DOCUMENT

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Not Repor[ed in N.E.2d Page 1

Not Reported in N.E.2d, 1990 WL 108728 (Ohio App. 5 Dist.) (Cite as: Not Reported in N.E.2d)

H OHIO CONSTITUTION. State v. StmnpfOhio App.,1990.Only the Westlaw citation is currently available. II. THE TRIAL COURT ERRED IN FINDING CHECK OHIO SUPREME COURT RULES FOR THE APPELLANT'S PLEA OF GUILT TO BE A REPORTING OF OPINIONS AND WEIGHT OF KNOWING AND VOLUNTARY WAIVER OF LEGAL AUTHORITY. HIS RIGFIT TO TRIAL IN VIOLATION OF THE Court of Appeals of Ohio, Fifth District, Guernsey FIFTH, SIXTH, EIGHTH AND FOURTEENTH County. AMENDMENTS OF THE UNITED STATES STATE of Ohio, Plaintiff-Appellee, CONSTITUTION. V. John David STUMPF, Defendant-Appellant. 111. THE TRIAL COURT ERRED IN FAILING No. 89-CA-50. TO FIND THAT DEFENSE COUNSEL IMPROPERLY INDUCED APPELLANT'S PLEA, July 23, 1990. AND THEREBY DEPRIVED THE APPELLANT OF HIS CONSTITUTIONALLY GUARANTEED RIGHT TO EFFECTIVE ASSISTANCE OF Appeal frotn Common Pleas Court, Case No. 9684. COUNSEL AS PROTECTED BY THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS C. Keith Plummer, Prosecuting Attorney, OF THE UNITED STATES CONSTITUTION. Cambridge, for plaintiff-appellee. David L. Doughten, Cleveland, for IV. THE APPELLANT WAS DENIED THE defen dant-appe l lant. EFFECTIVE ASSISTANCE OF COUNSEL AT THE MITIGATION PHASE OF HIS CAPITAL Before PUTMAN, P.J., and SMART and GWIN, JJ. TRIAL IN VIOLATION OF THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS OF THE OPlNION UNITED STATES CONSTITUTION AND ART. I GWIN, Judge. SECTIONS 10 AND 16 OF THE OHIO *1 Defendant-appellant, John David Stumpf CONSTITUTION. (appellant), appeals from the judgment of the Court of Common Pleas of Guernsey County granting V. THE APPELLANT WAS DENIED summary judgment in favor of the State of Ohio EFFECTIVE ASSISTANCE OF COUNSEL ON thereby dismissing appellant's petition for APPEAL AS GUARANTEED BY THE FIFTH, post-conviction relief under R.C. 2953.21, which SIXTH AND FOURTEENTH AMENDMENTS judgment is attached as an Appendix to this TO THE UNITED STATES CONSTITUTION. opinion. Appellant now seeks our review and assigns the following as error: VI. THE TRIAL COURT ERRED IN SUMMARILY DISMISSING APPELLANT 1. INEFFECTIVE ASSISTANCE OF TRIAL STUMPF'S POST CONVICTION PETITION COUNSEL RENDERED THE APPELLANT'S WITHOUT ACCORDING HIM AN WAIVER OF A JURY TRIAL INVALID IN EVIDENTIARY HEARING. CONTRAVENTION OF THE FIFTI-1, SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STA'fES CONSTITUTION AND I ARTICLE I SECTIONS 10 AND 16 OF THE

O 2007 Thomson/West. No Claitn to Orig. U.S. Govt. Works.

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Not Reported in N.E.2d, 1990 WL 108728 (Ohio App. 5 Dist.) (Cite as: Not Repm-ted in N.G.2d)

In his first assignment, appellant claitns that his claim must judge the reasonableness of counsel's waiver of a jury trial is invalid because of challenged conduct on the facts of the particular ineffective assistance of counsel. The standard case, viewed as of the time of counsel's conduct...." two-pronged test by which we are guided in the case /d at 690. sub judice for determining whether there has been ineffective assistance of counsel is: *2 Here, appellant's trial counsel advised appellant that he should waive a jury trial because a police First, the defendant must show that counsel's officer had recently been shot in Guernsey County performance was deficient. This requires a and that would prevent him frotn obtaining a fair showing that counsel inade errors so serious that and impartial jury. Appellant claims that trial counsel was not functioning as the "counsel" counsel, midway through voir• dire, advised guaranteed the defendant by the Sixth Amendment. appellant that the attitudes of the perspective jurors Second, the defendant must show that the defcient had hardened from the killing of the police officer. perfonnance prejudiced the defense. Appellant claims that this demonstrated a lack of competent counsel because the killitig of the police Strickland v. Washington (1984), 466 U.S. 668, 687. officer was unrelated to the instant case, none of the prospective jurors during voir dire mentioned the The above test is in substance the test for policeman's death, none of the attorneys questioned detertnining effective assistance of counsel under the perspective jurors on the killing, and appellant's the Ohio Constitution. See State v. Lytle (1976), counsel did not renew a request to change venue. 48 Ohio St.2d 391, 195, vacated in part on other grounds (1978), 438 U.S. 910; State v. Brooks Upon reviewing appellant's trial counsel's advice at (1986), 25 Ohio St.3d 144, 147; State v. Post the time it was given and the evidence against (1987), 32 Ohio St.3d 380, 388. appellant, we find that the advice that appellant waive a jury trial was a plausible and reasonable In State v. Decke• (1986), 28 Ohio St.3d 137, 140, strategic decision. the Ohio Supreme Court sumtnarized certain relevant portions of the Strickland, supra, analysis As stated in State v. Clayton (1980), 62 Ohio St.2d as follows: 45, 49:

In Strickland v. Washington (1984), 466 U.S. 668, Counsel chose the strategy that proved ineffective the United States Supreme Court articulated the but that the fact that there was another and better duties of trial counsel. The court stated that "... strategy available does not amount to a breach of an counsel has a duty to tnake reasonable essential duty to his client. investigations or to make a reasonable decision that makes particular investigations unnecessary.° Id. at We cannot say that appellant's trial counsel failed to 691. Accord .State v. Johnson (1986), 24 Ohio tnake a reasonable strategic cltoice faced with the St3d 87, 89. The court also observed that "... evidence against appellant and his reading of a strategic choices made after thorough investigation jmy's attitude during voir dire. of law and facts relevant to plausible options are virtually unchallengeable...." Stricklancf, satpra, at Accordingly, we overrule this first assignment. 690. And, importantly, the Strickland court recognized the "distorting effects of hindsight" and warned against second-guessing as to counsel's 11 assistance after a conviction. Id. at 689. For these reasons, the court must identify the acts or In his second assignment, appellant claims that he omissions of counsel that are alleged not to have did not make a knowing, intelligent and voluntary been the result of reasonable professional judgment, plea of guilty to aggravated murder with a capital and "... a court deciding an actual effectiveness specification because such plea was entered only

(0 2007 Thotnson/West. No Claint to Orig. U.S. Govt. Works.

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Not Reported in N.E.2d, 1990 WL 108728 (Ohio App. 5 Dist.) (Cite as: Not Reported in N.E.2d)

after appellant's counsel assured appellant that lie *3 The three judge panel also found that the would not receive the death penalty. We overrule initigating circumstances of a lack of significant this assignment because the record before us criminal history, and appellant's youth existed. indicates that appellant was well aware, before his However, the panel found that the aggravated plea was accepted, of the possibility that the death circumstances outweighed the mitigating factors penalty could still be imposed if he pled guilty. beyond a reasonable doubt.

Accordutgly, this assignment of error is hereby Upon review of the record, and the documentary overruled. evidence subnitted by appellant in this petition, we cannot say that appellant lacked a competent counsel at the mitigating phase. III The underlying theme/argument prevalent In Iiis third assignment, appellant claims that throughout this assignment, is that appellant's appellant's trial counsel improperly induced the counsel selected the wrong theory or tactic at the appellant's plea of guilty by indicating that he would mitigation phase. We find that this underlying not receive the death penalty upon entering the plea theme/argument uneqttivocally fails to meet the and such constituted ineffective assistance of two-pronged test of Strickland, supra. counsel. We disagree. Accordingly, we overrule this assignment of error.

As discussed above, appellant was sufficiently apprised before entering his plea that such a plea V still carried the possibility of the death penalty. Accordingly, appellant has failed to demonstrate In his fifth assignment, appellant claims that he was that his counsel's advice prejudiced him under the denied effective assistance of counsel at the Strickland, sr pra, test. appellate stage of the proceedings by failing to raise other "uumerous instances of error." Therefore, we oven'ule this assigntnent of error. Assuming argarendo the trial coutt incorrectly concluded that ineffective assistance of appellate IV counsel is not cognizable generally in proceedings tmder R.C. 2953.21 in any case, we affirm the trial Through this assignment appellant asks us to look court's judgment in this case for different reasons. with hindsight at the mitigation phase of this capital Under Strickland, the critical question for trial and conclude that appellant's counsel's ineffective assistance of appellate counsel in a performance was inadequate by what he did and did capital case is whether a reviewing court with ttot present. reasonable probability would have come to a different result had appellant's appellate counsel As pointed out in the attached judgment entry, raised other instances of error. counsel for appellant presented at the mitigating phase "fifteen people who were friends, family Assuming arguenao appellant's appellate counsel members and former teachers, evidence in the form did not raise these other "numerous instances of of exhibits regarding [appellant's] Co-defendants, error" on the original appeal, we find that there is Clyde Daniel Wesley and Norman Edmonds, not a reasonable probability of a different appellate [appellant's] school records, and questionnaires result had these other instances of error been submitted by members of [appellant's] community" presented. Furthermore, appellant's counsel was able to show that "the greater weight of the evidence was that the Accordingly, the fiftlt assignment of error is [appellant] had been well-liked and well-adjusted." overruled.

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Not Reported in N.E.2d, 1990 WL 108728 (Ohio App. 5 Dist.) (Cite as: Not Reporte(i in N.F.2d)

VI finds that the State of Ohio's Motion for Summary Judginent should be granted, and Defendant's We overrule this final assignment for there were no Motions for Summary Judgment and Petition to specific allegations, if true, which would justify the Vacate or Set Aside Sentence should be denied. conclusion of ineffective assistance of counsel nor was there subinitted evidentiary documents The Court makes the following findings of fact and containing sufficient operative facts to demonstrate conclusions of law: ineffective assistance of counsel so to require an evidentiary hearing thereon. FINDINGS OF FACT In a petition for post-conviction relief, which asserts ineffective assistance of counsel, the petitioner 1. Petitioner was indicted on May 14, 1984 for a bears the initial burden to submit evidentiary violation of R.C. § 2903.01, Aggravated Murder of documents containing sufficient operative facts to Mary Jane Stout, with accompanying specifications demonstrate lack of co npetent counsel and that the pursuant to R.C. § 2929.04(A)(3), (A)(5) and (A)(7) defense was prejudiced by counsel's ineffectiveness. ; a violation of R.C. § 2903.01, Attempted Aggravated Murder of Nortnan Stout; and for State v. Jackson (1980), 64 Ohio St.2d 107, violations of R.C. § 2911.01 and 2913.02, syllabus. Aggravated Robbery and Theft.

Accordingly, we overrule this assignment of error. 2. Petitioner waived his right to a jmy trial and elected to be tried by a three-judge panel. For the foregoing reasons, we affirm the judginent of the Court of Common Pleas of Guernsey County. 3. On September 17, 1984, the Petitioner entered a guilty plea to the aggravated tnurder of Mary Jane PUTMAN, P.J., and SMART, J., concur. Stout, and the specification that her murder was done to escape detention, apprehension, trial or APPENDIX punishment for aggravated robbery, and the attempted aggravated murder of Norman Stout. ENTRY Petitioner also entered a guilty plea to the attempted aggravated murder of Norman Stout. CASE NO. 9684 4. After hearing evidence, the three-judge panel accepted Petitioner's pleas and found the Petitioner November 27, 1989 guilty.

5. The Court conducted a sentencing ltearing at which Petitioner presented evidence from fifteen This matter comes on for hearing before the Court people who were friends, family members and on Defendant's Petition for Post-Conviction Relief, former teachers, and evidence in the form of pursuant to Revised Code § 2953.21 and the State exhibits regarding Petitioner's Co-defendants, Clyde of Ohio's Motion for Summary Judgment and Daniel Wesley and Norman Edntonds, Petitioner's Defendant's Motion for Suminary Judgment. school records, and questionnaires submitted by members of Petitioner's community. *4 The Court has carefully reviewed the Defendant's Petition for Post-Conviction Relief, the 6. The greater weight of the evidence was that the supporting Affidavits, the Court file and the Petitioner ltad been well-liked and well-adjusted. attached partial transcripts. Based on this review, Petitioner had the ability to read and write, and the the Court, applying the standard of Civil Rule 56, Petitioner worked hard and helped other people.

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Not Reported in N.E.2d, 1990 WL 108728 (Ohio App. 5 Dist.) (Cite as: Not Reported in N.E.2d)

7. The thrust of the Petitioner-'s evidence was that liinited to waiving the jury, choosing not to the Petitioner was a "follower" and Wesley was the introduce cumulative evidence, and asking "leader". questions of witnesses.

8. The three-judge panel found that the mitigating 19. Petitioner's Affidavits are ctunulative of circumstance of a lack of a significant criminal evidence presented to and considered by the history existed. three-judge panel (Transcript of Proceedings, September 17, 18, 19, 20, 21 and 24, 545, 419-421, 9. The three-judge panel also found that the 445, 479). mitigating circumstance of the Defendant's youth existed. 20. The Ohio Suprenie Court has held in State v. Stumpf, supra, that evidence was properly presented 10. The panel found that the aggravated and cottsidered at the sentencing hearing. circumstances outweighed the mitigating factors beyond a reasonable doubt and imposed the death 21. Petitioner's counsel had no tneritorious grounds penalty. for the objections Petitioner claims they should have made. 11. Petitioner filed a Motion for a New Trial, which the Trial Court overruled. 22. The Trial Court advised the Petitioner that the death penalty was a possible penalty. 12. Petitioner appealed both his conviction and the Court' overruling his Motion for New Trial. 23. The facts show the Petitioner to be of low, but normal, intelligence, capable of understanding that 13. On May 22, 1986, the Guernsey County Court the death penalty was a potential punishment; and of Appeals affirmed the conviction and sentence the facts show that this potential punishment was and upheld the Court's overruling the Motion for read to the Defendant by Judge Henderson. New Trial in State v. John David Stumpf, Case No. CA-760, CA-793. CONCLUSIONS OF LAW 14. The Ohio Supreme Court affirmed on August 19, 1987 in State v. Stumpf(1987), 32 Ohio St.3d 95 1. Only constitutional violations alleged to have occurred at trial may be raised in a post-conviction petition pursuant to R.C. § 2953.21. *5 15. Petitioner filed a Petition to Vacate Judgment pursuant to R.C. § 2953.21, alleging he 2. Allegations of inetf'ective assistance of appellate had received the ineffective assistance of counsel at cottnsel may not be raised in a post-conviction trial and on appeal. petition.

16. The partial transcripts and pleadings of 3. A defendant is entitled to post-conviction relief Petitioner's trial show that the Petitioner's trial only if there was suclt a denial or infringement of counsel represented Petitioner diligently. the rigltts of the Defendant as to render his conviction void or voidable under the Ohio or 17. The partial transcripts and the standards of law United States Constitutions. to be applied show that Petitioner's counsel adequately investigated the facts in preparation for 4. Petitioner received effective assistance of counsel. the sentencing hearing. 5. Petitioner's Petition for Post-Conviction Relief 18. Decisions about which Petitioner complains does not state grounds for relief. The judgment is were reasonable trial tactics, including but not neither void nor voidable.

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Not Reported in N.E.2d, 1990 WL 108728 (Ohio App. 5 Dist.) (Cite as: Not Reported in N.E.2d)

It is therefore the Order of this Court that Defendant's Motions for Sumtnaty Judgment and Petition to Vacate or Set Aside Sentence pursuant to R.C. § 2953.21 are denied. It is the Order of the Court that the State of Ohio's Motion for Summary Judgment is hereby granted. /s/ David A. Eliwood JUDGE OF THE COMMON PLEAS COURT OF GUERNSEY COUNTY, OHIO

cc: Prosecuting Attorney

Patricia Walsh & David Doughten, 1040 Standard Blvd., 1370 Ontario St., Cleveland, Ohio 44113

For the reasons stated in the Memorandum-Opinion on file, the judgment of the Court of Common Pleas, Guernsey, County, Ohio, is affirtned.

Ohio App.,1990. State v. Stumpf Not Reported in N.E.2d, 1990 WL 108728 (Ohio App. 5 Dist.)

END OF DOCUMENT

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