State v. GarrettState v. Garrett
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 11, 2024
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Anthony Miranda, Assistant Prosecuting Attorney, for appellee.
Jerome Garrett, pro se.
FRANK DANIEL CELEBREZZE, III, J.:
{¶ 1} Jerome Garrett (“Garrett“) appeals thе judgment of the trial court denying his amended petition for postconviction relief, filed on February 12, 2004, without holding an evidentiary hearing on the motion. For the reasons that follow, this court affirms.
{¶ 2} In August 2001, a jury convicted Gаrrett of aggravated murder with prior calculation and design and tampering with evidence. Garrett directly appealed his convictions, arguing that (1) he was not afforded a fair trial due to the trial court‘s alleged congeniality with the prosecutor, (2) the trial court erred in denying his
{¶ 3} While his direct appeal was pending, Garrett filed a pro se motion to vacate or set aside his sentence on June 20, 2002. In this motion, Garrett argued that his trial counsel was ineffective for three reasons: (1) failing to call certain expert witnesses, (2) inadequately cross-examining James Atkins (“Atkins“),1 the state‘s witness that Garrett knew and shared a holding cell with prior to trial, and (3) failing to object to, or move for a mistrial, based on his placement in a holding cell with Atkins prior to trial. The state opposed the motion, arguing that it was untimely.
{¶ 5} The trial court appointed counsel about two weeks later. In June 2004, Garrett filed a motion rеquesting that the court order his appointed counsel to contact him.
{¶ 6} The docket is largely silent until December 2022, when Garrett filed a motion to remove appointed counsel and appoint new counsel, citing the fact that he was unable to maintain contact with appointed counsel, and that appointed counsel erroneously informed him that his postconviction procеedings had ended, that he was free to pursue federal relief, and wished him “good luck.” Garrett argued that now, 18 years later, he has discovered that his postconviction petitions remain pending. The state opposed, and the trial court denied Garrett‘s motion for new counsel. Garrett filed for reconsideration, which the trial court also denied in June 2023.
{¶ 8} It is from this deniаl that Garrett initiated the instant appeal, assigning a single error for our review:
The trial court made an arbitrary decision and an abuse of discretion when denying appellant‘s petition for post-conviction relief without holding an evidentiary hearing on the petition that was pending since 2004, on ineffective assistance of trial counsel.
II. Law and Analysis
{¶ 9} In his sole assignment of error, Garrett argues that the trial court erred in denying his amended2 postconviction relief petition without holding an evidentiary hearing. Garrett argues that “the prima facie evidence was extremely strong and more than enough to satisfy [the trial court‘s] judicial duty to order an evidentiary hearing[.]” In support of his assignment of error, Garrett advances arguments that his trial counsel was ineffective for (1) failing to object to numerous instances of prosecutorial misconduct, (2) eliciting testimony from Atkins that was
{¶ 10} A petition for postconviction relief is a collateral civil attack of a criminal conviction. See State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 48. There is no constitutional right to petition for postconviction relief; the only rights afforded to a defendant in a postconviction proceeding are those specifically granted by the General Assembly. State v. Rackley, 8th Dist. Cuyahoga No. 102962, 2015-Ohio-4504, ¶ 10.
{¶ 11}
{¶ 12} Garrett filed the trial transcript in his direct appeal on Decembеr 17, 2001. The first filing date to fall 180 days after was June 17, 2002. Both the original postconviction motion and the amended postconviction motion were filed after this date.
{¶ 13} Because Garrett‘s petitions were untimely, Garrett was required to meet the statutory requirements of
{¶ 14} Because we determine that Garrett has not established the requirements of
[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 claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in the judgment of convictions, or аn appeal from that judgment.
State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus.
{¶ 16} “To avoid the preclusive effect of res judicata, post-conviction relief claims must be ‘based on evidence outside of the original record that existed during direct appellate proceedings.‘” State v. Meyerson, 9th Dist. Summit No. 30260, 2023-Ohio-708, ¶ 15, citing State v. Bulls, 9th Dist. Summit No. 27713, 2015-Ohio-5094, ¶ 9.
{¶ 17} It follows, then, that Garrett was not unavoidably prevented from discovering any of the bases for his amended postconviction relief petition, and the trial court did not err in failing to grant a hearing deriving from the bases alleged in Garrett‘s untimely and successive amended motion for postconviction relief. See also State v. Cole, 2 Ohio St.3d 112, 114, 443 N.E.2d 169 (1982) (observing that a postconviction-relief petition alleging ineffective assistаnce of counsel generally requires evidence de hors the record); State v. Jackson, 64 Ohio St.2d 107, 111, 413 N.E.2d 819 (1980) (holding that a petition must submit evidentiary documents containing sufficient operative facts to demonstrate that trial counsel was ineffective and the prejudicial effect thereof before a hearing is granted).
{¶ 18} Garrett‘s claims are barred by res judicata.
III. Conclusion
{¶ 20} The trial court did not err in denying Garrett‘s amended petition for postconviction relief without holding an evidentiary hearing because Garrett‘s untimely petition for postconviction relief failed to demonstrate that he was unavoidably prevented from discovering the evidence prompting the postconviction petition. All of the issues raised in Garrett‘s postconviction petition could have been, and indeed were, raised in his direct appeal and are thus barred by res judicata.
{¶ 21} Judgment affirmed.
It is ordered that аppellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
FRANK DANIEL CELEBREZZE, III, JUDGE
LISA B. FORBES, P.J., and MICHAEL JOHN RYAN, J., CONCUR