State v. Fry, 2012 Ohio 2602

Defendant-appellant Clarence Fry was convicted by jury in 2006 of aggravated murder with specifications, aggravated murder, murder, aggravated burglary, two counts of domestic violence, and tampering with evidence, and was sentenced to death.
In 2007, while direct appeal was pending, Fry filed a petition for post-conviction relief and moved for the trial judge to recuse; the court held the matter in abeyance.
Supreme Court of Ohio affirmed Fry’s convictions in March 2010.
In 2011, the State moved to dismiss Fry’s post-conviction petition; Fry sought funding for experts and discovery, which the court denied, and the petition was denied without a hearing on res judicata grounds.
The Ninth District Court of Appeals remanded for consideration of Fry’s twelfth ground for relief and affirmed in part, reversed in part, and remanded for further proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether res judicata bars Fry’s post-conviction claims	Fry asserts dehors-the-record evidence could show reversible error	State contends claims barred if could have been raised on direct appeal	Partially sustained: some claims barred, some remanded for merits considering dehors-the-record evidence
Whether Fry was entitled to a hearing on his post-conviction petition	Fry seeks an evidentiary hearing on grounds including ineffective assistance and exculpatory evidence	Court may deny a hearing if no substantive grounds shown	Remanded to assess evidence related to the twelfth ground for relief; other grounds deemed not ripe for a hearing at this stage
Whether Fry was entitled to funding for experts and discovery	Requests for funding and discovery were necessary to prove substantive claims	No statutory right to discovery in post-conviction; court did not abuse discretion	Overruled as to entitlement to discovery and funding (no automatic right; guided by statutory framework)
Whether voluntary recusal procedure was properly handled	Trial judge should have recused; denial was reviewable	Disqualification lies with Supreme Court under R.C. 2701.03; court cannot grant voluntary recusal review	Overruled: court lacked authority to review voluntary recusal; proper procedure required affidavit to Supreme Court

State v. Perry, 10 Ohio St.2d 175 (Ohio 1967) (res judicata bar in post-conviction relief actions; syllabus quoted)
State v. Calhoun, 86 Ohio St.3d 279 (Ohio 1999) (gatekeeping role; credibility of affidavits; need for substantiation)
State v. Gondor, 112 Ohio St.3d 377 (Ohio 2006) (deference to trial court’s gatekeeping in post-conviction relief)
Lafler v. Cooper, 132 S. Ct. 1376 (U.S. 2012) (Sixth Amendment right to counsel extends to plea bargaining; prejudice standard)
Missouri v. Frye, 132 S. Ct. 1399 (U.S. 2012) (prejudice in plea bargaining requires showing would have accepted offer with competent advice)
State v. Ketterer, 111 Ohio St.3d 70 (Ohio 2006) (Sixth Amendment rapport/relationship between counsel and client; not basis to grant relief)
State v. Ashworth, 85 Ohio St.3d 56 (Ohio 1999) (Ashworth hearing; evaluating knowingly intelligent waiver)
United States v. Cronic, 466 U.S. 648 (U.S. 1984) (presumption of prejudice in certain complete denials of counsel)