STATE OF OHIO, Plaintiff-Appellee, vs. D‘JANGO HENDRIX, Defendant-Appellant.
APPEAL NOS. C-190701, C-190702
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
October 1, 2021
2021-Ohio-3470
ZAYAS, Presiding Judge.; MYERS and WINKLER, JJ., concur.
TRIAL NO. B-1400317; Criminal Appeals From: Hamilton County Court of Common Pleas; Judgments Appealed From Are: Affirmed in C-190701; Appeal Dismissed in C-190702
D‘Jango Hendrix, pro se.
{¶1} Defendant-appellant D‘Jango Hendrix appeals the Hamilton County Common Pleas Court‘s judgments dismissing his “Motion for Postconviction Relief
Procedural Posture
{¶2} In 2015, for his role in a shoot-out following a neighborhood gathering, Hendrix was convicted upon jury verdicts finding him guilty on four counts of attempted murder and a single count of having weapons while under a disability. He unsuccessfully challenged his convictions on direct appeal and in a petition under
{¶3} In 2019, Hendrix filed a single document titled “Motion for Postconviction Relief
C-190701—Motion for Postconviction Relief
{¶4} In the case numbered C-190701, Hendrix appeals the dismissal of his motion for postconviction relief under the postconviction statutes or, alternatively,
{¶5} The motion for postconviction relief. In his support of his motion for postconviction relief, Hendrix alleged that the state had failed to disclose in discovery transcripts of police interviews, and that the state had knowingly elicited, and failed to correct, false and misleading testimony concerning the number of shоoters and the types of guns fired. He alleged that his trial counsel‘s failure to investigate and call exculpatory witnesses denied him his constitutional right to compulsory process. And he alleged that his trial counsel had been ineffective in investigating and presenting his defense. Specifically, he asserted that trial counsel should have secured and used medical records, testimony by his treating physician, and opinion testimony by a medical and forensic-pathology expert to support his claim that he had been shot at an upward trajectory and not, as the state‘s theory went, with a .45-caliber hollow-point bullet. He asserted that counsel should have investigated and used the victims’ statements to police to impeach those witnesses, to show that multiple people had shot at Hendrix, and to show that the victims had coordinated their trial testimony to paint Hendrix as the aggressor. And he asserted that counsel should have investigated and presented medical testimony and records to counter the state‘s theory of the case, to impeach witnesses, and to support his claim of self-defense.
{¶6} Hendrix also argued that he had been unavoidably prevented from discovering the facts on which his postconviction claims depended. He acknowledged that he had, before his trial, signed a medical-release form. But he
{¶7} Hendrix supported his postconviction claims with evidence outsidе the trial record. He provided his medical records, along with documentation of medical-records requests that defense counsel had made before trial and he had made in 2017. He provided affidavits made in July 2019 by his trial counsel and a medical and forensic-pathology expert. He did not, however, provide his own affidavit in support of his unavoidable-prevention or postconviction claims.
{¶8} The medicine and forensic-pathology expert, in his affidavit, offered his opinion that Hendrix‘s medical records disclosed “no evidence that [he had been] shot with a hollow-point bullet” or “a large-caliber projectile,” but instead showed a gunshot wound that was “completely consistent with a metal-jacketed 9mm projectile wound.” The expert also proposed to offer an opinion “[o]n the issue of self-defense,” after he “receiv[ed] the necessary records.”
{¶9} In his affidavit, counsel retained by Hendrix to represent him at trial acknowledged deficiencies in his preparation and presentation of Hendrix‘s defense. Counsel averred that his failure to subpoena additional medical records and to interview Hendrix‘s treating physician or move for funds tо retain a medical expert had “undermined” Hendrix‘s argument, “crucial to [his] self-defense claim,” that there had been “a second shooter.” Counsel further asserted that Hendrix‘s self-defense claim might also have benefited from interviewing neighbors whose bedroom window was five feet from where Hendrix had beеn standing when he “returned fire,” from interviewing the shooting victims concerning Hendrix‘s claim that Chris White, not Jay Dillon, had shot him, from investigating Donald Raines‘s
{¶10} No relief under
{¶11} But a rule of criminal procedure does exist for advancing the postconviction claims presented in Hendrix‘s motion for postconviction relief:
{¶12} No jurisdiction under
{¶13}
{¶14} In his motion, Hendrix claimed that the state had failed to disclose in discovery the victims’ statements to police. That claim is belied by defense counsel‘s use of those statements in cross-examining the victims. See Hendrix, 1st Dist. Hamilton Nos. C-150194 and C-150200, 2016-Ohio-2697, at ¶ 7-12.
{¶15} Hendrix also claimed that his trial counsel had been ineffective in failing to investigate and use certain evidence to impeach the credibility of the four attempted-murder victims, who had countered Hendrix‘s self-defense claim with testimony that he had fired on them first. But this court, in the direct appeal, essentially concluded that the jury had not lost its way in finding that Hendrix, by firing first, had been at fault in creating the situation that led to the exchange of gunfire. Id. at ¶ 45-46. And the evidеnce offered in support of that claim cannot be said to so undermine the credibility of those witnesses that its use at trial would have compelled contrary verdicts.
{¶16} Thus, Hendrix, with his motion for postconviction relief, did not satisfy
C-190702—Motion to Make State‘s Evidence Available
{¶17} In the case numbered C-190702, Hendrix appeals the common pleas court‘s entry dismissing as moot his “Motion to Make the Stаte‘s Physical Evidence Available for Inspection and Testing.” In his fourth assignment of error, he contends that the court erred in denying the relief sought in that motion. We do not reach the merits of the assignment of error, because we have no jurisdiction to review the dismissal of the motion.
{¶18} No common pleas court jurisdiction. In his “Motion to Make the Stаte‘s Physical Evidence Available for Inspection and Testing,” Hendrix did not designate a rule or statute under which the relief sought may be granted. This left the common pleas court to “recast” that motion “into whatever category necessary to identify and establish the criteria by which the motion should be judged.” See State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12 and syllabus.
{¶19} But the motion was not reviewable by the common pleas court under any postconviction procedure provided by statute or rule. The motion was not reviewable under the standards provided by
{¶20} No court of appeals jurisdiction. Moreover, under
{¶21} Under
{¶22} This court also has jurisdiction under
{¶23} Finally, an appeals court has jurisdiction under
{¶24} Thus, under
{¶25} The entry dismissing the motion was not entered in the “proceeding” commenced upon Hendrix‘s July 2019 motion for postconviction relief. The common pleas court terminated that proceeding in October 2019, when it entered a final appealable order dismissing the motion for lack of jurisdiсtion under
{¶26} Nor did the “Motion to Make the State‘s Physical Evidence Availablе for Inspection and Testing” commence an “action” or “proceeding” before the common pleas court. As we determined, the motion was subject to dismissal for lack of jurisdiction, because it was not reviewable by the common pleas court under any postconviction procedure provided by statute or rule.
{¶27} Because we lack jurisdiction to review the common pleas court‘s entry overruling Hendrix‘s “Motion to Make the State‘s Physical Evidence Available for Inspection and Testing,” the appeal from that entry must be dismissed.
We Affirm
{¶28} The common pleas court properly dismissed for lack of jurisdiction Hendrix‘s motion for postconviction relief. We, therefore, affirm the judgment appealed in the case numbered C-190701.
{¶29} This court has no jurisdiction to review the entry dismissing Hendrix‘s “Motion to Make the State‘s Physical Evidence Available for Inspection and Testing.” Accordingly, we dismiss the appeal in the case numbered C-190702.
Judgment accordingly.
MYERS and WINKLER, JJ., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.