State v. AtkinsonState v. Atkinson
For Plaintiff-Appellee
D. MICHAEL HADDOX
Prosecuting Attorney
Muskingum County, Ohio
TAYLOR P. BENNINGTON
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth Street – P.O. Box 189
Zanesville, Ohio 43702-0189
For Defendant-Appellant
JAMES ANZELMO
446 Howland Drive
Gahanna, Ohio 43230
Hoffman, P.J.
{¶1} Defendant-appellant Eric Atkinson appeals the June 4, 2019 Entry entered by the Muskingum County Court of Common Pleas, which denied his petition for post-conviction relief without conducting a hearing. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On October 29, 2017, Angelina Butler took her children trick or treating with her friend in her friend‘s neighborhood. Appellant is the father of Butler’s children. Butler’s friend lives near Appellant. As they walked past Appellant‘s residence, Appellant exited his home, wearing a mask to scare the children. Butler asked Appellant to stop and an argument ensued. Appellant pushed Butler, who responded by kicking him. In retaliation, Appellant punched her in the face, and then pushed her. Butler and her group returned to her friend‘s residence and called the Sherriff‘s office. Butler felt sick and began to vomit. While speaking with law enforcement, Butler lost consciousness. The officers proceeded to Appellant’s residence. Appellant admitted assaulting Butler, but claimed it was in self-defense because she kicked him in the groin. As a result of the altercation, Butler had a concussion and pinched nerves. She underwent multiple surgeries to correct the damage Appellant caused.
{¶3} On November 1, 2017, the Muskingum County Grand Jury indicted Appellant on one count of felonious assault, in violation of
{¶5} On December 26, 2018, Appellant filed a pro se petition for post-conviction relief, seeking to have his conviction set aside. Appellant asserted two grounds in support of relief. First, Appellant claimed the State failed to provide medical records and medical statements in discovery. Appellant explained the discovery was necessary for him to properly defend himself against the felonious assault charge, which required proof of serious physical harm to another. Appellant also alleged the State failed to establish an essential element of the offense of domestic violence, to wit: the victim was a family or household member. Appellant also requested an evidentiary hearing. Appellant did not include any documentation in support of his petition. Appellant subsequently filed a motion to amend his petition to include a claim his sentence was disparate when compared to similarly situated defendants.
{¶7} It is from this entry Appellant appeals, assigning as error:
THE TRIAL COURT ERRED BY DENYING ATKINSON’S PETITION FOR POST-CONVICTION RELIEF WITHOUT A HEARING.
{¶8} The post-conviction relief process is a collateral civil attack on a criminal judgment, rather than an appeal of the judgment. State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999). The post-conviction relief proceeding is designed to determine whether “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.”
{¶9} A trial court‘s decision to grant or deny a post-conviction petition filed pursuant to
{¶10} A criminal defendant seeking to challenge a conviction through a petition for post-conviction relief is not automatically entitled to an evidentiary hearing. Calhoun, supra at 282, citing State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169 (1982). Before granting an evidentiary hearing, the trial court must determine whether substantive grounds for relief exist.
{¶11} “Substantive grounds for relief exist and a hearing is warranted if the petitioner produces sufficient credible evidence that demonstrates the petitioner suffered a violation of the petitioner’s constitutional rights.” In re B.C.S., 4th Dist. No. 07CA60, 2008-Ohio-5771, ¶ 11. The petitioner must demonstrate the claimed “errors resulted in prejudice.” Calhoun, supra at 283. A court may dismiss a petition for post-conviction relief without a hearing when the petitioner fails to submit evidentiary material “demonstrat[ing] that petitioner set forth sufficient operative facts to establish substantive grounds for relief.” Id. at paragraph two of the syllabus.
{¶12} A trial court may also dismiss a petition for post-conviction relief without holding a hearing when the doctrine of res judicata bars the claims raised in the petition.
{¶13} Appellant maintains the trial court abused its discretion in denying his petition for post-conviction relief on res judicata grounds. Appellant explains the doctrine of res judicata does not apply to bar the claim he raised in his petition for post-conviction relief as his “claim relies on information outside of the record and could not have been relied upon on direct appeal.” Brief of Appellant at 3-4. Appellant continues, he “could not have raised the discovery issue on direct appeal because it pertained to evidence outside of the record. That evidence outside of the record is the discovery not provided during pre-trial proceedings.” Id. at 4.
{¶14} On December 26, 2018, Appellant filed a pro se Petition to Vacate or Set Aside Judgment of Conviction or Sentence. Therein, Appellant asserted he was entitled to relief because the State failed to provide him with evidence favorable to his defense and failed to establish an essential element of the offense of domestic violence. Appellant amended his petition, alleging his sentence was disparate when compared to similarly situated defendants.
{¶15} We agree with Appellant “[a]n exception to the res judicata bar is when the petitioner presents competent, relevant, and material evidence outside the record that was not in existence and available to the petitioner in time to support the direct appeal”. State v. Watson, 126 Ohio App.3d 316, 324-325, 710 N.E.2d 340 (3d Dist.1998).
{¶17} The trial court correctly found Appellant’s argument challenging the sufficiency of the State’s evidence to establish the victim was a family or household member was barred by res judicata as the issue could have been raised on direct appeal.1
{¶18} We do agree with Appellant his claim the State withheld exculpatory medical evidence (an alleged Brady violation) depends on evidence outside the original appellate record and would not be barred by res judicata.2
{¶19} However, we agree with the trial court Appellant failed to provide any evidence to support his Brady violation claim. Appellant’s mere conclusory opinion was not supportive by any affidavit(s) or other medical evidence. Based upon the record before the trial court concerning the extent of the victim’s injuries, which resulted in her undergoing multiple surgeries, we find the trial court did not abuse its discretion in denying Appellant’s petition without a hearing for this independent reason.
{¶20} “[A] reviewing court is not authorized to reverse a correct judgment merely because erroneous reasons were assigned as a basis thereof.” State ex rel. Peeples v. Anderson, 73 Ohio St.3d 559, 560, 653 N.E.2d 371, 373(1995); State ex rel. Cassels v.
{¶21} “[I]t is the definitely established law of this state that where the judgment is correct, a reviewing court is not authorized to reverse such judgment merely because erroneous reasons were assigned as the basis thereof.” Agricultural Ins. Co. v. Constantine, 144 Ohio St. 275, 284, 58 N.E.2d 658 (1944); State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 222, 631 N.E.2d 150 (1994).
{¶22} Based on the foregoing, we find the trial court did not abuse its discretion in denying Appellant’s request for an evidentiary hearing and denying his petition for post-conviction relief.
{¶23} Appellant’s sole assignment of error is overruled.
{¶24} The judgment of the Muskingum County Court of Appeals is affirmed.
By: Hoffman, P.J.
Wise, John, J. and
Delaney, J. concur