STATE OF OHIO, Respondent-Appellee, - vs - MARK E. BLANKENBURG, M.D., Petitioner-Appellant.
CASE NO. CA2012-04-088
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
12/28/2012
[Cite as State v. Blankenburg, 2012-Ohio-6175.]
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2009-03-0368
Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A. Oster, Jr., Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for respondent-appellee
Fred S. Miller, Baden & Jones Bldg., 246 High Street, Hamilton, Ohio 45011 and Christopher J. Pagan, 1501 First Avenue, Middletown, Ohio 45044, for petitiоner-appellant
RINGLAND, J.
{¶ 1} Defendant-appellant, Mark E. Blankenburg, M.D., appeals the decision of the Butler County Court of Common Pleas denying his petition for postconviction relief (“PCR“).
{¶ 2} In October 2009, appellant, a pediatrician, was convicted by a jury of various sexual offenses involving his minor patiеnts. This court affirmed the convictions on March 26, 2012. State v. Blankenburg, 197 Ohio App.3d 201, 2012-Ohio-1289 (12th Dist.). On
{¶ 3} The state moved for summary judgment on December 20, 2010, arguing that the claim of juror bias was nоt tenable under the “aliunde rule.” Attached to appellant‘s memorandum in opposition to summary judgment were two affidavits from coworkers of the allegedly biased juror, T.M. According to the affidavits, T.M. had made statements that (1) her son had been a patient of appellant‘s; (2) she wanted to be a jurоr in the case so that she could see appellant “fry;” and (3) she wanted to be the jury foreman so that she could deliver the guilty verdict. In its reply brief, the state, again, argued that this information was barred by the “aliunde rule” but also asserted that the averments in the affidavits were inadmissible hearsay.
{¶ 4} On April 5, 2012, the trial court filed an “Order Denying Petition for Post Conviction Relief,” granting the state‘s motion for summary judgment and denying appellant‘s petition without a hearing. In its order, the trial court found that appellant‘s claim was barred by the doctrine of res judicata. Appellant appeals the trial court‘s decision, raising a single assignment of error:
{¶ 5} THE TRIAL COURT ERRED TO THE PREJUDICE OF [APPELLANT] WHEN IT DISMISSED HIS PETITION FOR POST-CONVICTION RELIEF.
{¶ 6} In his sole assignment of error, appellant argues that the trial court improperly granted the state‘s motion for summary judgment and dismissed his PCR petition on res judicata grounds because his petition was supported by material evidence outside the record
{¶ 7} “A prosecuting attorney may move for summary judgment in postconviction proceedings pursuant to
{¶ 8} PCR petitions are governed by
(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.
{¶ 9} A postconviction proceeding is not an appeal of a criminal conviction, but a collateral civil attack on a criminal judgment. State v. Calhoun, 86 Ohio St.3d 279, 281, 1999-Ohio-102; State v. Bell, 12th Dist. No. CA2001-08-197, 2002-Ohio-1341, ¶ 5. Under
Res Judicata
{¶ 10} A trial court may dismiss a PCR petition without a hearing on the basis of the doctrine of res judicata. State v. Lindsey, 12th Dist. No. CA2002-02-002, 2003-Ohio-811, ¶ 21; State v. Perry, 10 Ohio St.2d 175, 179 (1967). “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 judgmеnt, 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.” State v. Flanklin, 12th Dist. No. CA2002-07-183, 2003-Ohio-1770, ¶ 11; State v. Szefcyk, 77 Ohio St.3d 93, 96, 1996-Ohio-337; Perry at paragraph nine of the syllabus.
{¶ 11} There is an exception to the application of res judicata where the petitioner
{¶ 12} In his PCR petition, appellant alleges that his Sixth Amendment right to a jury trial was abridged due to the bias of one juror, T.M. According to the affidavits of two of T.M.‘s coworkers, T.M. harbored a bias towards appellant and was obsessed with becoming a juror on the case. The first affiant, Dale, averred on April 6, 2011, that (1) he and T.Μ. worked together at a pharmacy and often filled prescriptions from appellant; (2) T.M. told him that her son was a patient of apрellant‘s; (3) T.M. expressed a great interest in being a juror in the case; (4) T.M. was obsessed with appellant‘s case, talking about it every day and frequently stating that she was “determined to be on that jury;” and (5) T.M. stated that she wanted to be the foreman of the jury so that she could deliver a guilty verdict to appellant. Thе second affiant, Timothy, averred on March 22, 2011, that (1) he and T.M. regularly filled prescription requests from appellant; (2) Dale told Timothy that T.M.‘s child was a patient at appellant‘s pediatric office; (3) T.M. told Dale that she was determined to get on the jury for appellant‘s trial; and (4) T.M. told Dale that she wanted to see appellant “fry” for what he had allegedly done to the victims.
{¶ 13} In its Order Denying Petition for Postconviction Relief, the trial court determined
{¶ 14} Having carefully reviewed the evidence, the issues raised by the affidavits, and appellant‘s arguments with regard to this evidence, we find that the trial court erred in granting summary judgment in the state‘s fаvor without first holding a hearing on the PCR petition. The bias or prejudice of even one juror may cause the violation of one‘s right to a fair trial. See Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir.1998); United States v. Hendrix, 549 F.2d 1225, 1227 (9th Cir.1977); Stone v. United States, 113 F.2d 70, 77 (6th Cir.1940). Appellant‘s evidence demonstrates the potential bias of a juror in a case that resulted in a more than 20-year prison term. There is no evidence in the original trial record or from the parties that the information contained in the two affidavits was known to appellant at the time of the direct appeal to this court. On the contrary, the affidavits are dated over one year after the original appeal was filed. Therefore, if true, this outside evidence is more than marginally relevant to support appellant‘s claim that he did not receive a fair trial. Accordingly, it was error for the trial court to summarily dismiss appellant‘s petition. As such, further exploration of this issue was warranted and a hearing оn appellant‘s petition should be held.
Inadmissible Hearsay
{¶ 15} We now turn to the state‘s argument that the trial court not only determined that appellant‘s petition should be denied on the basis of res judicata, but also on the merits of the case, with a finding that the affidavits were comprised of inadmissible hearsay. In support of this argument, the state relies on one sentence in the trial court‘s Order Denying Petition for
{¶ 16} Although the trial court should give due deference to affidavits sworn to under oath, it may exеrcise its discretion and determine that the affidavit testimony lacks credibility “without first observing or examining the affiant.” State v. Calhoun, 86 Ohio St.3d 279, 284 (1999); State v. Hoop, 12th Dist. No. CA2004-02-003, 2005-Ohio-1407, ¶ 11. “[W]here a petitioner relies upon affidavit testimony as the basis of entitlement to postconviction relief, and the information in the affidavit, even if true, does not rise to the level of demonstrating a constitutional violation, then the actual truth or falsity of the affidavit is inconsequential.” Calhoun at 284, citing State v. Perry, 10 Ohio St.2d 175 (1967). In determining the credibility of supporting affidavits in PCR proceedings, the trial court should consider all relevant factors including:
- (1) whether the judge reviewing the [PCR] petition also presided at the trial,
- (2) whеther multiple affidavits contain nearly identical language, or otherwise appear to have been drafted by the same person,
- (3) whether the affidavits contain or rely on hearsay,
- (4) whether the affiants are relatives of the petitioner, or otherwise interested in the success of the petitioner‘s efforts, and
- (5) whether the affidavits contradict evidence proffered by the defense at trial.
{¶ 17} “Depending on the entire record, one or more of these or other factors may be sufficient to justify the conclusion that an affidavit asserting information outside the record lacks credibility.” Id. “A trial court that discounts the credibility of sworn affidavits should include an explanation of its basis for doing so in its findings of fact and conclusions of law, in
{¶ 18} Essentially, the state is arguing that, because the trial court stated that the affidavits contain inadmissible hearsay, the trial court determined that the affiants lacked credibility and, therefore, denial of the PCR petition was appropriate. However, the trial court did not find that the affiants were not credible. Rather, the trial court merely stated that the affidavits were comprised of inadmissible hearsay. Consideration of only one factor, without explanation, is not a sufficient bаsis for denying the PCR petition. Therefore, we find that the trial court did not make a credibility determination regarding the affidavits but, instead, simply stated that the affidavits contained hearsay.
The Aliunde Rule
{¶ 19} The state also argues that
{¶ 20}
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as tо any matter or statement occurring during the course of the jury‘s deliberations or to the effect of anything upon that or any other juror‘s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror‘s mental processes in connection therewith. A juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury‘s attention or whether any outside influence was improperly brought to bear on any juror, only after some outside evidence of that act or event has been presented.
“The rule is intended to preserve the integrity of the jury process and the privacy of deliberations, to protect the finality of the verdict, and to insulate jurors from harassment by
{¶ 21} “In order to permit juror testimony to impeach the verdict, a foundation of extraneous, independent evidence [i.e., evidence aliunde] must first be established.” Schiebel at 75. “This foundation must consist of information from sоurces other than the jurors themselves, and the information must be from a source which possesses firsthand knowledge of the improper conduct.” Id., citing Wicker v. Cleveland, 150 Ohio St. 434 (1948).
{¶ 22} Although the trial court alludes to the aliunde rule by generally citing
{¶ 23} Judgment reversed and remanded.
POWELL, P.J., and HENDRICKSON, J., concur.
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