State v. Scudder

Petree, Judge. In May 1989, the Franklin County Grand Jury returned a multiple-count indictment charging defendant, Kevin P. Scudder, with two counts of aggravated murder, one count of attempted rape, and one count of kidnapping. Each of the charges arose as the result of the attempted rape and death of fourteen-year-old Tina Baisden on February 6,1989. In 1990, defendant was tried to a jury, which found him guilty of all charges and specifications set forth in the indictment. Following the mitigation phase of the trial, the court sentenced defendant to death for the stabbing death of Tina Baisden. On appeal, this court affirmed both defendant’s conviction and sentence. State v. Scudder (Oct. 20, 1992), Franklin App. No. 91AP-506, unreported, 1992 WL 302432. Likewise, defendant’s conviction was affirmed by the Ohio Supreme Court in State v. Scudder (1994), 71 Ohio St.3d 263, 643 N.E.2d 524. After exhausting his direct appeals, defendant filed a petition for postconviction relief with the trial court. Defendant raised five claims in his original petition, and an additional three claims in a subsequent amended petition. In substance, those claims are (1) that defendant was denied a fair trial due to the trial court’s refusal to permit the presentation of additional mitigating evidence; (2) that defendant was denied effective assistance of counsel in regard to the admission of DNA evidence; (3) that defendant was denied a fair trial by virtue of the admission of unreliable DNA evidence; (4) that defendant was denied effective assistance of trial counsel as counsel failed to present the testimony of an alleged alibi witness; (5) that defendant was denied a fair trial by virtue of the state’s failure to disclose exculpatory evidence; (6) that defendant was denied effective assistance of counsel as counsel failed to present the jury with accurate and *473 competent evidence of defendant’s alleged mental impairment; (7) that defendant was denied a fair trial by the admission of unreliable psychological evidence; and (8) that defendant was denied a fair trial by virtue of the trial court’s incorrect jury instructions. On August 22, 1996, the state of Ohio moved to dismiss defendant’s petition on the basis that the claims raised therein were factually unsupported and were barred by the doctrine of res judicata. On November 21, 1997, the trial court issued a decision which included comprehensive findings of fact and conclusions of law, and which also dismissed defendant’s petition for relief. Thereafter, defendant filed a notice of appeal raising the following three assignments of error: “I. The trial court erred when it violated appellant’s right to equal protection and due process right to effective assistance of counsel and his right to proceed pro se by failing to conduct an evidentiary hearing on appellant’s claim of ineffective assistance of post conviction counsel and desire to proceed pro se. “II. The trial court erred in failing to hold a hearing on petitioner’s ineffective assistance of counsel claim, thus violating his rights under the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States, [sic] and Article I, Sections 1, 2, 9,10,16 and 20 of the Ohio Constitution. “III. The trial court erred in dismissing the petition because the state post conviction scheme as applied offers an inadequate corrective process for the factual development, hearing and determination of claims of violation of state and federal constitutional guarantees.” In his first assignment of error, defendant alleges that he was entitled to a constitutional due process and equal protection right to the effective assistance of counsel during the pendency of his postconviction proceedings. We do not agree. The Sixth Amendment to the United States Constitution provides a right to the effective assistance of counsel in criminal proceedings. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. That right also applies in certain civil proceedings where the state seeks to impinge on a life, liberty, or property interest. See State ex rel. Heller v. Miller (1980), 61 Ohio St.2d 6, 15 O.O.3d 3, 399 N.E.2d 66 (holding that actions instituted to force the permanent, involuntary termination of parental rights required that indigent parents be provided with counsel and a transcript at public expense). However, as we explained in State v. Jackson (June 30, 1998), Franklin App.No. 97APA12-1660, unreported, 1998 WL 354023, the right to appointed counsel does not apply in civil postconviction relief proceedings. In Jackson, we explained: “ ‘ “The right to appointed counsel extends to only the first appeal of right, and since a defendant has no federal constitutional right to counsel when pursuing a discretionary appeal on direct review of his conviction, * * * he has no such right *474 when attacking, in post-conviction proceedings, a conviction that has become final upon exhaustion of the appellate process. * * * States have no obligation to provide postconviction relief, and when they do, the fundamental fairness mandated by the Due Process Clause does not require that the State supply a lawyer as well.” ’ ” Id. at 10-11, quoting Pennsylvania v. Finley (1987), 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539, syllabus. Except as noted above, a civil litigant does not have a right to the effective assistance of appointed counsel. “Unlike a criminal defendant, a civil litigant has no constitutional right to the effective assistance of counsel.” Goldfuss v. Davidson (1997), 79 Ohio St.3d 116, 126, 679 N.E.2d 1099, 1106. Accordingly, although the General Assembly felt it appropriate to grant indigent postconviction petitioners access to appointed counsel, it was not required to do so, nor was it required to guarantee the effective assistance of counsel. Indeed, it appears that the General Assembly anticipated and sought to prevent collateral attacks upon counsel’s performance by way of R.C. 2953.21(I)(2). That provision reads: “The ineffectiveness or incompetence of counsel during proceedings under this section does not constitute grounds for relief in a proceeding under this section, in an appeal of any action under this section, or in an application to reopen a direct appeal.” In Ohio, postconviction relief proceedings are civil in nature. State v. Mapson (1987), 41 Ohio App.3d 390, 535 N.E.2d 729; State v. Haliym (Mar. 12, 1998), Cuyahoga App. No. 72411, unreported, 1998 WL 108139; State v. Key (Dec. 28, 1993), Franklin App. No. 91AP-1517, unreported, 1993 WL 540290 (1993 Opinions 5939). Consequently, defendant has no Sixth Amendment right to the effective assistance of counsel and the trial court did not err in failing to conduct a hearing upon appellant’s claims that postconviction counsel was ineffective. Defendant’s first assignment of error is thus overruled. In his second assignment of error, defendant argues that the trial court erred in failing to hold a hearing on his petition for postconviction relief. In particular, defendant argues that the trial court erred when it applied the doctrine of res judicata to dismiss defendant’s petition. R.C. 2953.21 provides: “(A)(1) 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.” *475 It is well settled that constitutional issues may not be considered in a postconviction proceeding where they have already been, or could háve been, litigated by the defendant on direct appeal. “ ‘ “Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment.” ’ ” (Emphasis added.) State v. Szefcyk (1996), 77 Ohio St.3d 93, 95, 671 N.E.2d 233, 235, quoting State v. Perry (1967), 10 Ohio St.2d 175, 39 O.O.2d 189, 226 N.E.2d 104, paragraph nine of the syllabus. A petition for postconviction relief may be dismissed without a hearing, based upon the doctrine of res judicata, when the trial court finds that the petitioner could have raised the issues in his petition at trial or on direct appeal without resorting to evidence which is beyond the scope of the record. State v. Mullins (1995), 104 Ohio App.3d 684, 662 N.E.2d 1142. In this case, defendant was provided a full and fair opportunity to litigate his claims that he was denied the effective assistance of trial counsel. On appeal to this court, defendant raised twenty-one assignments of error, including assignments of error alleging the ineffective assistance of counsel. In our decision we noted: “Defendant sets forth six instances where defense counsel’s performance was allegedly deficient. These instances are: failure to challenge the admissibility of DNA evidence; failure to object to the excusal of prospective juror Winters; failure to object to other acts evidence; failure to assure that the contents of defendant’s wallet did not reach the jury; failure to object to the prosecutor’s closing argument; and failure to object to the informing of the jury that their sentence was a recommendation.” We continued, finding that “[e]ach of defense counsel’s alleged deficiencies have previously been discussed and held not to be error. Thus, defendant cannot meet the Strickland test.” 1 Id. *476 Similarly, in his direct appeal before the Ohio Supreme Court, defendant raised forty-seven assignments of error, several dealing with ineffective assistance of counsel. The Supreme Court noted: “In his thirty-first through thirty-third propositions of law, appellant claims that he was deprived of the effective assistance of counsel throughout the trial and appellate proceedings. In considering appellant’s arguments, we find that appellant has failed to meet his burden of establishing ineffective assistance under the standards set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Therefore, we reject appellant’s thirty-first, thirty-second and thirty-third propositions of law.” Scudder, supra, 71 Ohio St.3d at 273-274, 643 N.E.2d at 533. In this case, defendant’s postconviction arguments going to the effectiveness of counsel are based upon issues that were part of the record, and that were in fact litigated in the context of defendant’s direct appeals. Although defendant alleges that he now relies upon evidence outside the scope of the record, we find nothing that would have prevented defendant from presenting that evidence to either this court or the Ohio Supreme Court in support of his direct appeals. Accordingly, having reviewed defendant’s petition, we do not believe that the trial court erred when it dismissed the petition on the basis of res judicata. As noted, defendant’s postconviction petition set forth eight claims for relief. First, defendant claims that he was denied a fair mitigation hearing because the trial court refused to allow him to present additional evidence after the jury returned its recommendation. In support of that claim, defendant submitted the affidavit of former counsel Scott Jelen. Jelen’s affidavit stated (1) that a “motion” to present additional evidence was denied by the trial court, and (2) that it was his opinion that “with additional time for investigation, additional mitigating evidence could have been presented.” 2 As correctly noted by the trial court, there is nothing in defendant’s first claim that requires the examination of evidence outside the scope of the record. The mere filing of an affidavit belatedly raising a claim that the trial court erred in not allowing defendant additional time in which to present mitigating evidence does not amount to evidence beyond the record requiring an evidentiary hearing. *477 Additionally, defendant’s first claim was also properly barred by the doctrine of res judicata as it was clearly capable of being raised on direct appeal. In his second and third claims, defendant attacks his trial counsel’s competency in dealing with the admission of DNA evidence. In support of those claims, defendant submits the affidavit of William C. Thompson. In essence, the Thompson affidavit opines that trial counsel was unable to effectively defend against the admission and use of DNA evidence at defendant’s trial. However, having reviewed Thompson’s affidavit, we agree with the trial court’s conclusion that it does not constitute evidence outside the record, as Thompson bases his opinion on evidence that is in fact contained within the transcript of defendant’s trial. In addition, the issues surrounding the use of DNA evidence, and defendant’s claim that his counsel was ineffective in defending against the use of this evidence, were issues that were litigated by defendant before this court and the Ohio Supreme Court. In his fourth and fifth claims, defendant asserts that his trial counsel was ineffective in failing to call a potential alibi witness. Having reviewed these claims, we agree with the trial court that such claims were not supported by affidavit or other competent evidence outside the record. In addition, we have found no error in the trial court’s application of res judicata to bar these claims. In his sixth and seventh claims, defendant argues that counsel was ineffective for failing to present the jury with accurate and competent evidence of defendant’s alleged “organic brain impairment.” In support of this allegation, defendant offered the affidavit of Dr. Jolie S. Brams. Again, having reviewed the matter, we believe that the trial court was correct in its conclusion that Brams’s affidavit presents no evidence beyond the scope of the record that has not been, or that could not have been, addressed in defendant’s direct appeals. In his final claim, defendant argues that the trial court erred when it instructed the jury at the conclusion of his trial. Clearly, this also is an issue that defendant was capable of raising on appeal. No evidence outside the record having been presented, we find that the trial court did not err in rejecting this claim. “R.C. 2953.21(C) provides that before a court grants a hearing on a petition for post-conviction relief, it must determine if substantive grounds for relief exist * * *. If a petition for post-conviction relief does not allege facts that, if proved, would entitle the prisoner to relief, the trial court may so find and summarily dismiss the petition.” Jackson, supra. Having enjoyed a full and fair opportunity to litigate defendant’s claims, the trial court did not err in dismissing defendant’s petition for postconviction relief *478 on the basis that it was not supported by evidence outside the record and upon the basis of res judicata. Accordingly, defendant’s second assignment of error is overruled. In his third assignment of error, defendant maintains that the trial court erred when it refused to grant him an evidentiary hearing, thus denying him an opportunity to develop a factual basis for his claims. As a general matter, R.C. 2953.21 is an adequate procedural means by which to hear and determine postconviction constitutional issues. Moreover, as to this case, we have already found that defendant failed to adduce facts that would entitle him to relief. As previously stated, if a petition for postconviction relief does not allege facts that, if proved, would entitle the petitioner to relief, the trial court may so find and summarily dismiss the petition. State v. Perry (1967), 10 Ohio St.2d 175, 39 O.O.2d 189, 226 N.E.2d 104. Accordingly, defendant’s third assignment of error is overruled. For the foregoing reasons, defendant’s assignments of error are overruled and the judgment of the Franklin County Court of Common Pleas is hereby affirmed. Judgment affirmed. Strausbaugh, J., concurs. Tyack, J., dissents. Dean Strausbaugh, J., retired, of the Tenth Appellate District, sitting by assignment. Footnotes [1] In Strickland, supra, the United States Supreme Court held that in order to show the ineffective assistance of criminal counsel a defendant must demonstrate the following: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id., 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. [2] In its decision, the trial court noted that the record reflected that on December 6, 1990, attorneys Jelen and McHenry filed a “Motion to Appoint New Counsel” two days after the jury returned its recommendation that defendant be sentenced to death. In support of their request, counsel stated that "[u]ndersigned counsel plans to present other mitigating evidence * * * [and] plans to write a detailed memorandum which will outline * * * why Mr. Scudder should not be sentenced to death.” The court further noted that while counsel made a statement on behalf of defendant at sentencing, and filed a motion for new trial on January 14, 1991, nothing was raised regarding new mitigating evidence.