State v. HardenState v. Harden
Rendered on the 16th day of July, 2010.
Mathias H. Heck, Jr., Pros. Attorney; Kirsten A. Brandt, Asst. Pros Attorney, Atty. Reg. No. 0070162, P.O. Box 972, Dayton, OH 45422
Attorneys for Plaintiff-Appellee
Dorrian A. Harden, No. A596-987, Lebanon Correctional Institution, P.O. Box 56, Lebanon, OH 45036
Defendant-Appellant, Pro Se
KLINE, J., (BY ASSIGNMENT):
{¶ 1} Dorrian A. Harden appeals the judgment of the trial court, which granted summary judgment in favor of the State and dismissed Harden‘s petition for post-conviction relief. Without holding an evidentiary hearing, the trial court found that Harden‘s
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{¶ 2} On June 7, 2002, Dayton Police officers stopped a car driven by Harden because the car had expired license plates. The police officers observed Harden making furtive movements during the stop. The officers feared that Harden might be arming himself with a weapon. Thus, when Harden exited the vehicle, the officers conducted a frisk for weapons and discovered crack cocaine.
{¶ 3} The State charged Harden with possession of crack cocaine, but Harden filed a motion to suppress the crack cocaine. Harden argued that the traffic stop was pretextual and that he
{¶ 4} Harden changed his plea of not guilty to a plea of no contest and was convicted of possession of crack cocaine in an amount equal to or greater than twenty-five grams but less than one hundred grams, in violation of
{¶ 5} Harden filed a petition for post-conviction relief on July 22, 2009. The trial court denied Harden‘s petition without a hearing. Harden appeals and assigns the following errors for our review:
FIRST ASSIGNMENT OF ERROR
{¶ 6} “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY FAILING TO HOLD AN EVIDENTIARY HEARING, PURSUANT TO HARDEN‘S PETITION FOR POST-CONVICTION RELIEF.”
SECOND ASSIGNMENT OF ERROR
{¶ 7} “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY GRANTING SUMMARY JUDGMENT TO THE STATE, AND DISMISSING HARDEN‘S PETITION FOR POST-CONVICTION RELIEF ON THE GROUNDS OF RES JUDICATA.”
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{¶ 9} A petition for post-conviction relief must be filed “no later than one hundred eighty days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication[.]”
{¶ 10} “[A]buse of discretion is the most prevalent standard [of review] for reviewing the dismissal of a petition for post-conviction relief without a hearing.” State v. Hicks, Highland App. No. 09CA15, 2010-Ohio-89, at ¶10 (surveying other Ohio courts). “The term ‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶ 11} In the present case, Harden filed his petition for post-conviction relief on July 22, 2009. This Court rendered final judgment on Harden‘s direct appeal on February 13, 2004. Harden‘s petition for relief is therefore untimely, and Harden must satisfy the requirements enacted at
{¶ 12} Harden contends that the docket, attached to his petition, establishes operative facts sufficient to warrant a
{¶ 13} However, Harden fails to demonstrate that any of these arguments rely on either a newly recognized constitutional right or newly discovered facts. Assuming that the face of the record demonstrates that the discovery requests were plainly not complied with, there does not seem to be any reason that Harden could not have relied on that issue in his direct appeal, or in a petition for relief within the time limit.
{¶ 14} Harden does seek to rely on Melendez-Diaz v. Massachusetts (2009), 129 S.Ct. 2527. Harden contends that this case makes it “imperative for a state prosecutor to provide favorable exculpatory evidence and/or tests to an accused upon request.” Harden‘s Brief at 8. This is an erroneous interpretation of that case. In Melendez-Diaz, the United States Supreme Court considered analysts’ affidavits concerning the nature of drug evidence, and the Supreme Court concluded that “the analysts’ affidavits were testimonial statements, and the analysts
{¶ 15} Harden asserts that he was unavoidably prevented from discovering facts related to his claim that his arrest and search were unconstitutional because his retained counsel relied on different legal arguments than he wanted to rely upon. Even if we accept this as true, Harden fails to demonstrate that he could only have discovered these facts after the time limit for filing a petition for post-conviction relief had elapsed.
{¶ 16} Harden also cites Arizona v. Gant (2009), 129 S.Ct. 1710. Harden contends that this case is relevant to his present petition. In Gant, the United State Supreme Court considered its precedents concerning a search of a suspect‘s vehicle incident to the suspect‘s arrest. Id. at 1723-24. Here, the police discovered the relevant evidence when they patted down Harden for weapons pursuant to Terry v. Ohio (1968), 392 U.S. 1. The law of searches incident to lawful arrest has no application in the present case. See State v. Tillman (Sept. 30, 1999), Montgomery App. No. 14060 (holding that the
{¶ 17} Harden also claims that the trial court lacked subject matter jurisdiction and that his conviction is not supported by sufficient evidence. However, Harden does not explain the basis of his argument for either legal issue. Indeed, his plea of no contest is an admission to the facts in the indictment and waives any argument concerning the sufficiency of the evidence. State v. Yslas, 173 Ohio App.3d 396, 2007-Ohio-5646, at ¶14. And there is nothing we can see in the record to demonstrate that the trial court lacked subject matter jurisdiction over the case. “If an argument exists that can support this assignment of error, it is not this court‘s duty to root it out.” State v. Carman, Cuyahoga App. No. 90512, 2008-Ohio-4368, at ¶31, citing Cardone v. Cardone (May 6, 1998), Summit App. Nos. 18349 & 18673.
{¶ 18} Therefore, we find that Harden‘s petition, the supporting affidavits, the documentary evidence, the files, and the records do not demonstrate that Harden set forth sufficient operative facts to establish substantive grounds for relief. Consequently, we find that the trial court did not abuse its discretion when it denied Harden‘s petition for post-conviction relief without holding an evidentiary hearing.
{¶ 19} Accordingly, we overrule Harden‘s first assignment of
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{¶ 20} The trial court found that Harden‘s petition was untimely. In the alternative, the trial court denied Harden‘s claim that the trial court should not have overruled his motion to suppress the crack cocaine (the subject of Harden‘s direct appeal) because the court determined that res judicata barred the court‘s consideration of that issue. Harden contends that he is arguing this ground differently in his petition for post-conviction relief, and thus, res judicata does not apply.
{¶ 21} As we stated earlier, the trial court‘s res judicata finding was in the alternative to its untimely finding. However, even if Harden had timely filed his petition or met one of the requirements for filing an untimely petition, we still would affirm the judgment of the trial court.
{¶ 22} “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 * * * 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. Szefcyk, 77 Ohio St.3d 93, 1996-Ohio-337, syllabus. The sole issue in Harden‘s previous appeal concerned whether his
{¶ 23} Harden cites a case from this district for the proposition that res judicata “does not bar a petitioner from presenting claims within a direct appeal and a post-conviction petition that are argued differently.” Harden‘s Brief at 7, citing State v. Hennis, 165 Ohio App.3d 66, 2006-Ohio-41. Harden‘s reliance on this case is misplaced. The petitioner in Hennis was able to again raise ineffective assistance of counsel arguments in his petition for post-conviction relief because those claims involved matters outside the record and could not have been raised on direct appeal. Hennis at ¶10, 20. Harden does not explain why his petition claims could not have been presented on direct appeal. Therefore, we find that the doctrine of res judicata does bar his claims, which involve the suppression of the crack cocaine.
{¶ 24} Accordingly, we overrule Harden‘s second assignment of error.
{¶ 25} Having overruled both of Harden‘s assignments of error, we will affirm the judgment of the trial court.
DONOVAN, P.J. And FAIN, J., concur.
(Hon. Roger L. Kline, Fourth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.)
Copies mailed to:
Kirsten A. Brandt, Esq.
Dorrian A. Harden
Hon. Connie S. Price