STATE OF OHIO, Plaintiff-Appellee -vs- BRIAN E. HOLLAND, Defendant-Appellant
Case No. 12-CA-56
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
February 26, 2013
2013-Ohio-905
Hon. Patricia A. Delaney, P.J.; Hon. W. Scott Gwin, J.; Hon. William B. Hoffman, J.
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleаs, Case No. 10 CR 628. JUDGMENT: AFFIRMED.
For Appellant: BRIAN E. HOLLAND, pro se, #647963 FMC Zone B, P.O. Box 23651, Columbus, OH 43223
For Appellee: KENNETH OSWALT, LICKING CO. PROSECUTOR, BRIAN WALTZ, 20 S. Second St., 4th Floor, Newark, OH 43055
{¶1} Appellant Brian E. Holland appeals from the June 19, 2012 judgment entry of the Licking County Court of Cоmmon Pleas overruling his petition for post-conviction relief. Appellee is the state of Ohio.
{¶2} Appellant also has a pending represented appeal from the trial court‘s judgment entry of March 23, 2012, which arises from the same underlying case. The appeals are not consolidated and therefore shall be determined separately.
FACTS AND PROCEDURAL HISTORY
{¶3} A statement of the facts underlying appellant‘s conviction upon one cоunt of illegal manufacture of methamphetamine and one count of illegal assembly or possession of chemicals for the manufacture of methamphetamine is not necessary to disposition of this appeal.
{¶4} Appellant‘s “Petition to Vacate or Set Aside Judgment of Conviсtion or Sentence” filed on November 1, 2011, asserts a number of grounds for relief, paraphrased here: 1) appellant should have been ablе to confront “Mr. Nard” and “Mr. Stevens” at trial but neither witness was called by appellee; 2) the prosecutor committed misconduct by referring to co-defendants when (allegedly) no one else was charged; 3) his conviction was against the manifest weight and sufficiency of the evidence; 4) Nard and Stеvens were (allegedly) not prosecuted but appellant was; and 5) appellant received ineffective assistance of trial cоunsel because counsel did not object to the mention of “co-defendants” and appellant‘s complicity therewith.
{¶5} Appellant subsequently filed “Respectfully Asks this Court for Leave to Admend Postconviction Petition with Evidence to Support A Evidentiary Hearing (Two
{¶6} Appellee responded to appellant‘s petition for post-conviction relief on May 8, 2012, and appellant replied. In his reply, appellant included a third affidavit which states in pertinent part: “I Karla Swick, who rеsides at 22 Parker Avenue Newark Ohio 43055 talked to Jyron Nard and he stated to me that he along with Darrick Stevens were not charged with any crime in return for testimony against [appellant]” (sic throughout).
{¶7} The trial court first overruled appellant‘s petition for post-conviction relief on November 9, 2011, finding the petition was untimely and duplicated appellant‘s direct appeal. Appellant appealed from that decision. We found the petition was timely filed and reversed and remanded the matter to the trial court with instructions to review the merits of the petition and to determine whether a hеaring is necessary. State v. Holland, 5th Dist. No. 2011-CAO-122, 2012-Ohio-1404, at ¶ 6. If the trial court determined no hearing was necessary, we noted “it should make appropriate findings of fact and conclusions of law.” Id.
{¶8} On June 19, 2012, the trial court again denied appellant‘s petition for post-conviction relief on the basis of res judicata, finding apрellant‘s claims were raised or could have been raised at trial or on direct appeal.
{¶10} Appellant raises two Assignments of Error:
{¶11} “I. THE TRIAL COURT ERRED BY IMPROPERLY DISMISSING APPELLANTS (sic) PETITION FOR POST-CONVICTION RELIEF WITHOUT CONDUCTING AN EVIDENTIARY HEARING BECAUSE APPELLANTS (sic) PETITION WITH IT‘S (sic) SUPPORTING AFFIDAVITS CONTAINED SUFFICIENT OPERTIVE (sic) FACTS TO DEMONSTRATE A SUBSTANTIVE GROUND FOR RELIEF.”
{¶12} “II. TRIAL COURT ERRED BY FINDING THAT PETITIONERS OUTSIDE THE RECORD AFFIDAVITS BY KARLA SWICK, CHARLES HESS AND JENNIE WEST WERE DEFECTIVE.” (sic)
I., II.
{¶13} Appellant‘s two assignments of error assert the trial court erred in overruling his petition for post-conviction relief without a hearing and in finding the affidavits he submitted were defective. We disagree.
{¶14} We will address appellаnt‘s second assignment of error first. Appellant appeals from the trial court‘s June 19, 2012 decision, which addresses each argument raised in appellant‘s petition, including those supported by the affidavits he provided. We are unable to find any decision of the trial court in the record which states appellant‘s affidavits were “defective,” and appellant has not appealed from any such ruling. Appellant‘s second assignment of error is therefore overruled on that basis.
{¶16} When a defendant files a post-conviction petition pursuant to
{¶17} We apply an abuse of discretion standard when reviewing a trial court‘s decisiоn to deny a post-conviction petition without a hearing. An abuse of discretion connotes more than an error of law or judgment; it entails a decision that is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶18} All but one of appellant‘s arguments here arise from his allegation that two individuals present at the scene of his arrest were not arrested or charged with any crime, although appellee referred to them at trial as “сo-defendants.” Each of these arguments could have been raised at trial or upon direct appeal. These individuals could have beеn called as witnesses at trial. Any alleged ineffectiveness
{¶19} Appellant‘s final argument, that his convictions are against the manifest weight and sufficiency оf the evidence, is also a matter for direct appeal and is the sole assignment of error in appellant‘s contemporaneous appeal pending before us in Fifth District Court of Appeals, Licking County case number 11-CA-47.
{¶20} We find, therefore, the trial court did not abuse its discretion in ovеrruling appellant‘s petition for post-conviction relief without a hearing. Appellant‘s two assignments of error are overruled and the judgment of the Licking County Court of Common Pleas is affirmed.
By: Delaney, P.J.
Gwin, J. and
Hoffman, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
STATE OF OHIO, Plaintiff-Appellee -vs- BRIAN E. HOLLAND, Defendant-Appellant
Case No. 12-CA-56
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
2013-Ohio-905
JUDGMENT ENTRY
For the reasons stated in our accompanying Opinion on file, the judgment of the Licking County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN