2018 Ohio 3338
Ohio Ct. App.2018Background
- Defendant Larry E. Brown II was convicted after a bench trial of multiple sex offenses against a minor and sentenced to 10 years to life; he appealed and this opinion addresses denial of his petition for postconviction relief (PCR).
- At trial the victim (B.H.) testified about assaults occurring at multiple locations, including a previously undisclosed location owned by Dan Day; defense moved for a new trial claiming surprise by that testimony, which was denied.
- On direct appeal this court rejected claims that the surprise testimony affected Brown’s rights and rejected an ineffective assistance claim tied to counsel’s failure to seek a recess to investigate the Day property because the testimony was cumulative and defense was that no abuse occurred.
- In the PCR petition Brown submitted new affidavits from Dan Day (stating Brown could not have been alone on Day’s secured property and the office was locked) and Dr. Scott Vosler (asserting Brown had barium poisoning and that B.H.’s mother had a motive to be antagonistic), asserting counsel was ineffective for not presenting these witnesses.
- The trial court denied the PCR petition without an evidentiary hearing, finding the Day and barium-poisoning evidence were either in or reasonably knowable from the record and thus barred by res judicata; it also found counsel’s choices were reasonable trial tactics.
- This court affirmed, holding res judicata barred the claims because the dehors-the-record exception did not apply and counsel’s decisions fell within reasonable professional judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PCR claims were barred by res judicata | Res judicata applies to issues that were or could have been raised on direct appeal | Brown: Day and Vosler affidavits are dehors the record and were not available on direct appeal, so res judicata does not bar PCR | Held: Claims barred by res judicata; Day and barium evidence were in or available from the record and could have been raised on direct appeal |
| Whether counsel was ineffective for not presenting Day as witness | N/A (state opposed PCR) | Brown: Day’s affidavit would have impeached the victim’s location-based allegation and affected outcome | Held: Claim barred by res judicata; trial counsel had raised the Day facts in a new-trial hearing and elected strategy was not ineffective |
| Whether counsel was ineffective for not presenting Dr. Vosler / barium evidence | N/A | Brown: Vosler’s affidavit shows barium poisoning and a motive for the victim’s family to fabricate or be antagonistic, which counsel failed to present | Held: Barred by res judicata because barium evidence was disclosed pretrial; court found the evidence had little impeachment value and counsel’s decision was trial tactic, not ineffective assistance |
| Whether an evidentiary hearing was required on PCR | State: No hearing if petition and record do not show operative facts requiring relief | Brown: Affidavits presented colorable ineffective-assistance claim that warranted a hearing | Held: No hearing required; record and affidavits did not overcome res judicata or show substantive grounds for relief |
Key Cases Cited
- State v. Calhoun, 86 Ohio St.3d 279 (Ohio 1999) (standards for denying postconviction relief without an evidentiary hearing)
- State v. Perry, 10 Ohio St.2d 175 (Ohio 1967) (res judicata bars claims raised or that could have been raised on direct appeal)
- State v. Xie, 62 Ohio St.3d 521 (Ohio 1992) (two-prong Strickland test applied in Ohio for ineffective-assistance claims)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (establishes deficiency and prejudice standards for ineffective assistance of counsel)