State v. HolnapyState v. Holnapy
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Jon W. Holnapy, appeals the judgment of the Lake County Court of Common Pleas denying his untimely petition for post-conviction relief following his conviction by a jury of operating a motor vehicle under the influence of alcohol (“OVI”). At issue is whether the trial court abused its discretion in denying appellant’s petition. For the reasons that follow, we affirm.
{¶3} The evidence revealed that, on September 28, 2009, while appellant was attempting to enter the parking lot of the Lake County Department of Job and Family Services (“JFS”) in downtown Painesville, he hit a yellow concrete pole at the entrance. He backed up and then drove forward again, crashing into the pole a second time. He then backed up again, entered the parking lot, and parked his car. He exited his car and walked along the side of the building staggering. As he was walking away, he kept turning around, throwing his arms up in the air, and talking out loud to himself.
{¶4} A witness called the police and reported the crash, giving appellant’s direction on foot and describing him as apparently intoxicated.
{¶5} Two Painesville police officers were dispatched to JFS. Upon their arrival, they saw appellant swaying, walking side to side on the sidewalk, and stumbling. Appellant pointed out his car and admitted he was driving when it crashed. The officers said appellant’s eyes were bloodshot and his speech was slurred. Appellant said he had three beers within the last hour. He also said that he was on Percocet at the time; that his last dose was a few hours earlier; and that he was surprised the beers affected him the way they did. Both officers said that, in their opinion, appellant was under the influence.
{¶7} Both officers testified that appellant did not appear to be injured, complain of any injury, or request any medical attention. They also said he answered their questions appropriately and did not appear to be confused.
{¶8} The parties stipulated that appellant has been convicted of five OVI offenses within the last 20 years.
{¶9} The jury returned its verdict finding appellant guilty of OVI as charged with the specification. The trial court sentenced appellant to 24 months for the OVI and three years on the specification, the terms to be served consecutively, for a total sentence of five years in prison.
{¶10} Appellant appealed his conviction and this court affirmed his conviction in State v. Holnapy, 194 Ohio App.3d 444, 2011-Ohio-2995 (11th Dist.), discretionary appeal not allowed by the Supreme Court of Ohio at 130 Ohio St.3d 1478, 2011-Ohio-6124 and 2012-Ohio-4021, 2012 Ohio LEXIS 2147 (Sep. 5, 2012).
{¶11} About two years after appellant filed his direct appeal, he filed a “delayed” petition for post-conviction relief in the trial court based on alleged newly discovered evidence. In his affidavit, he said his trial counsel was ineffective. In support, appellant said that, prior to trial, he “demanded” that his attorney subpoena his physician, Dr. Gary Kutsikovich, to testify regarding his findings. These findings included the doctor’s opinion that appellant sustained a head injury in the instant crash and a summary of appellant’s self-reported symptoms that, appellant said, were mistaken for signs of
{¶12} The trial court denied the petition without a hearing. The court found that appellant’s petition was barred by res judicata because he was aware at trial of the grounds he raised in support of his ineffectiveness claim and could have raised, but failed to raise, the argument in trial or on direct appeal. Further, the court found that appellant’s ineffectiveness claim lacked merit because he failed to present substantive grounds for relief. In addition, the court found that trial counsel’s decision to call Dr. Adelman as a witness, rather than Dr. Kutsikovich, was a strategic, tactical decision and thus not deficient performance. The court also found that appellant had not demonstrated prejudice. Finally, the court found the petition was time-barred.
{¶13} Appellant appeals the trial court’s judgment, asserting two assignments of error. Because they are related, we shall consider them together. They allege:
{¶14} “[1.] The [Common Pleas] Court erred to the prejudice of defendant-appellant Jon Holnapy’s delayed petition for post conviction relief denying him redress of grievance under Article I Section 16 of the Ohio Constitution and equal protection of
{¶15} “[2.] The [Common Pleas] Court erred to the prejudice of defendant-appellant Jon Holnapy’s delayed petition for post conviction relief denying him redress of grievance under Article I Section 16 of the Ohio Constitution and equal protection of the law under the 14th Amendment of the U.S. Constitution when it abused its discretion denying his ineffective assistance of counsel claim absent an evidentiary hearing when he submitted evidentiary document of his medical doctor’s findings dehors the record that could have contradicted the state of Ohio’s evidence of a DUI charge and or conviction” (sic throughout).
{¶16} On appeal, appellant repeats the argument he made in his petition, namely, that his trial counsel was ineffective in her choice of medical experts to testify and that appellant was unavoidably prevented by his trial counsel from discovering Dr. Kutsikovich’s findings, which prevented him from timely filing his petition.
{¶17} As a preliminary matter, we note that an appellate court applies an abuse-of-discretion standard in reviewing a trial court’s ruling on a petition for post-conviction relief alleging ineffective assistance of counsel. State v. Hendrex, 11th Dist. Trumbull No. 2010-T-0103, 2011-Ohio-1588, ¶28. Likewise, an appellate court reviews a trial court’s decision not to conduct a hearing in post-conviction matters under an abuse-of-
{¶18}
{¶19} Further,
{¶20} Regarding a petitioner’s right to a hearing on his petition, this court in State v. Noling, 11th Dist. Portage No. 98-P-0049, 2003-Ohio-5008, stated:
{¶21} [A] defendant challenging his conviction through a petition for post-conviction relief is not automatically entitled to a hearing. State v. Calhoun, 86 Ohio St.3d 279, 282 (1999). “Only after he meets his initial burden to show substantive grounds for relief from the files and records of the case and, often, evidentiary materials dehors the record is a hearing required.” State v. Davie,[ ]11th Dist. [Trumbull] No. 97-T-0175, 1998 Ohio App. LEXIS 4540, [*5] [(Sep. 25, 1998)]. Stated differently, “* * * before a hearing is granted, ‘the petitioner bears the initial burden to submit evidentiary documents containing sufficient operative facts to demonstrate * * *’” that [constitutional]
{¶22} Further, this court in State v. Schlee, 11th Dist. Lake No. 97-L-121, 1998 Ohio App. LEXIS 6363 (Dec. 31, 1998), held that when a petition for post-conviction relief is based on ineffective assistance of counsel, the petitioner must submit “evidence dehors the record.” Id. at *5. The evidence outside the record “must meet some threshold standard of cogency.” Id. In explaining this standard, this court stated:
{¶23} “The evidence must be genuinely relevant, and it must materially advance a petitioner’s claim that there has been a denial or infringement of his or her constitutional rights. In the absence of such a standard, it would be too easy for the petitioner to simply attach as exhibits ‘evidence which is only marginally significant and does not advance the petitioner’s claim beyond mere hypothesis and a desire for further discovery.’” State v. Sopjack, [11th Dist. Geauga] No. 96-G-2004, 1997 Ohio App. LEXIS 3789, *10 (Aug. 22, 1997), quoting [State v. ]Coleman, [1st Dist. Hamilton No. C-
{¶24} The Supreme Court of Ohio in Jackson, supra, held that “[i]n a petition for post-conviction relief, which asserts ineffective assistance of counsel, the petitioner bears the initial burden to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and that the defense was prejudiced by counsel’s ineffectiveness.” Id. at syllabus. Further, “[t]he evidence submitted must not be cumulative of or alternative to evidence presented at trial.” State v. Cowan, 151 Ohio App.3d 228, 2002-Ohio-7271, ¶13 (11th Dist.). Moreover, “‘the evidence dehors the record must not be evidence which was in existence and available for use at the time of trial and which could and should have been submitted at trial if the defendant wished to use it.’” Id. at ¶15, quoting State v. Slagle, 8th Dist. Cuyahoga No. 76834, 2000 Ohio App. LEXIS 3641, *3 (Aug. 10, 2000).
{¶25} Here, appellant failed to submit any cogent evidence outside the record providing substantive grounds for relief. Appellant’s documents do not evidence that his attorney’s performance was deficient or that any errors of his attorney resulted in his prejudice. To the contrary, appellant’s affidavit shows that, after his attorney interviewed Dr. Kutsikovich, she concluded Dr. Adelman’s testimony would be more favorable and made the strategic, tactical decision to have Dr. Adelman, rather than Dr. Kutsikovich, testify for the defense. Further, appellant concedes that Dr. Kutsikovich’s reports were prepared before trial and thus were in existence and available for use in trial. Appellant’s argument that he was unaware of them at that time is unavailing because he admitted in his affidavit that Dr. Kutsikovich was treating him for head injuries before
{¶26} Further, appellant’s petition is barred by res judicata. ‘“[T]he doctrine of res judicata precludes a defendant from raising, in a petition for postconviction relief, an ineffective assistance of counsel claim that was or could have been raised at trial or on direct appeal. * * *’” State v. Vinson, 11th Dist. Lake No. 2007-L-088, 2008-Ohio-3059, ¶32, quoting State v. Delmonico, 11th Dist. Ashtabula No. 2004-A-0033, 2005-Ohio-2882, ¶14. “This is particularly true where the petitioner obtained new counsel for their direct appeal and the claim of ineffective assistance could have been raised without resorting to evidence outside the record.” State v. McCaleb, 11th Dist. Lake No. 2004-L-003, 2005-Ohio-4038, ¶19. Where an appellant is represented by new counsel on direct appeal and the ineffectiveness of appellant’s trial counsel could have been determined without resort to evidence outside the record, a petition for post-conviction relief alleging ineffective assistance of trial counsel is barred by res judicata. State v. Cole, 2 Ohio St.3d 112, 113-114 (1982). “For a defendant to avoid dismissal of the petition by res judicata, the evidence supporting the claims in the petition must be competent, relevant, and material evidence outside the trial court’s record, and it must not be evidence that existed or was available for use at the time of trial. * * *” (Emphasis added.) State v. Adams, 11th Dist. Trumbull No. 2003-T-0064, 2005-Ohio-348, ¶39. Accord State v. Braden, 10th Dist. Franklin No. 02AP-954, 2003-Ohio-2949, ¶27 (“the evidence relied upon [to avoid res judicata] must not be evidence that was in existence or available for use at the time of trial and should have been submitted at trial if the petitioner wished to
{¶27} Here, appellant was represented by different counsel at trial and on appeal. Further, appellant was aware of his ineffective-assistance claim while the matter was before the trial court. Appellant stated in his affidavit that, prior to trial, he told his attorney to subpoena Dr. Kutsikovich to testify regarding his alleged head injury, but that his attorney told him she decided to have Dr. Adelman testify instead. As a result, appellant’s ineffective-assistance claim was based on evidence that existed or was available for use at the time of trial. Further, the fact that trial counsel did not call Dr. Kutsikovich to testify would have been apparent from the record. Thus, appellant could have raised, but failed to raise, this alleged deficiency in trial or on direct appeal. As a result, the argument is barred by res judicata. For this additional reason, the trial court was entitled to deny the petition without a hearing. Id.
{¶28} Further, appellant’s petition was time-barred. Pursuant to
{¶29} (a) * * * [T]he petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief * * * [; and]
{¶31} Here, the transcript was filed with this court in appellant’s direct appeal on August 9, 2010. However, he did not file his petition for post-conviction relief until August 8, 2012, nearly two years after the transcript was filed. Thus, his petition was filed more than 180 days after the trial transcript was filed and is untimely.
{¶32} Appellant concedes his petition was untimely, but argues the exception to the 180-day time limit set forth in
{¶33} With respect to the second element of the exception to the 180-day time limit, requiring that appellant present clear and convincing evidence that no reasonable jury would have found him guilty, not only did he fail to present any such evidence, he did not even make any argument in support of this element.
{¶34} Because appellant’s petition for post-conviction relief was filed beyond the 180-day time period and the exception provided in
{¶35} In any event, even if appellant’s petition was not barred by res judicata and if it was not time-barred, his petition would fail on the merits because appellant has failed to demonstrate his trial counsel was ineffective.
{¶36} The standard of review for ineffective assistance of counsel was stated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984).
{¶37} In order to support a claim of ineffective assistance of counsel, the defendant must satisfy a two-prong test. First, he must show that counsel’s performance
{¶38} Second, the defendant must show the deficient performance prejudiced the defense. In order to satisfy this prong, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s * * * errors, the result of the [trial] would have been different.” Id. at 694; accord State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph three of the syllabus.
{¶39} It is well settled that strategic and tactical decisions do not constitute a deprivation of the effective assistance of counsel. State v. Clayton, 62 Ohio St.2d 45, 49 (1980). Errors of judgment regarding tactical matters do not substantiate a claim of ineffective assistance of counsel. Id.
{¶40} Appellant argues that his trial counsel was ineffective in not calling Dr. Kutsikovich as a witness at trial and, instead, calling Dr. Adelman. In State v. Wolf, 11th Dist. Lake No. 93-L-151, 1994 Ohio App. LEXIS 5993 (Dec. 30, 1994), this court held, “the calling of * * * a witness can best be viewed as a tactical decision * * *.” Id. at *27.
{¶41} Here, appellant’s own affidavit defeats his claim of ineffective assistance. In it he concedes that, after his attorney interviewed Dr. Kutsikovich, his attorney decided to have Dr. Adelman testify for the defense, rather than Dr. Kutsikovich. This was because appellant’s attorney decided that “the prosecutor would use [Dr. Kutsikovich’s findings] against [appellant] and that [Dr. Kutsikovich’s] findings “would only hurt the defense.” Counsel’s decision was eminently reasonable in light of Dr. Kutsikovich’s final report, dated March 10, 2010, in which the doctor stated that appellant had a normal EEG. Thus, counsel’s decision to call Dr. Adelman, rather than Dr. Kutsikovich, as an expert medical witness was a strategic, tactical decision and did not constitute deficient performance.
{¶42} Moreover, appellant failed to prove prejudice because the verdict was supported by other overwhelming evidence of his guilt. Appellant crashed his car twice into a concrete pole while attempting to park his car. The officers said appellant’s eyes were bloodshot and they smelled an odor of alcoholic beverage coming from him. Further, appellant admitted that he had consumed three beers within the hour before the crash; that he was also taking Percocet at the time; and that the beers affected him. He also refused to perform field sobriety tests or to take a breathalyzer test. Both officers said appellant did not appear to be injured, complain of any injury, or request any medical attention. Further, both officers expressed their opinion that appellant was under the influence.
{¶44} For the reasons stated in this opinion, appellant’s assignments of error are overruled. It is the judgment and order of this court that the judgment of the Lake County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J., concurs,
TIMOTHY P. CANNON, P.J., concurs with Concurring Opinion.
TIMOTHY P. CANNON, P.J., concurring.
{¶45} I respectfully concur in the judgment of the majority to affirm the decision of the trial court. However, I do not agree that res judicata should apply. While it is true the medical records at issue may have been available to appellant at the time of his original appeal, they were not contained in the record in that appeal. As a result, if appellant had attempted to make the argument in his previous appeal that he makes in this case, I believe we would have instructed appellant to file a petition for postconviction relief. State v. Egli, 11th Dist. Portage No. 2007-P-0052, 2008-Ohio-2507, ¶68; State v. Smith, 17 Ohio St.3d 98, 101 (1985), fn. 1. A petition for postconviction relief is the only vehicle available that would allow us to see the medical records and determine whether the petition and the documents not previously included in the record would warrant a hearing.
{¶47} It should be clear that in situations where evidence in support of a claim of ineffective assistance of counsel was not and could not have been included in the record of the original appeal, a petition for postconviction relief is not barred by res judicata. See State v. Schlee, 11th Dist. Lake No. 97-L-121, 1998 Ohio App. LEXIS 6363, *8. To hold otherwise means that an appellant—who is unable to argue ineffective assistance of counsel at trial, unable to present evidence outside the record on direct appeal, and barred by the doctrine of res judicata from raising the issue in a petition for postconviction relief—could potentially be denied the opportunity to have his evidence reviewed at all.
{¶48} I believe the Eleventh District case cited by the majority in support of its position that res judicata applies actually supports the position taken in this concurring
{¶49} As an initial matter, we note that the trial court erred by barring this cause of action by the doctrine of res judicata. Indeed, appellant raised ineffective assistance of counsel in five propositions of law in his direct appeal to the Supreme Court of Ohio. In his direct appeal, appellant argued theories of ineffective assistance of counsel based upon evidence that was contained within the trial court record. However, in his petition for postconviction relief, appellant alleged an entirely new theory of ineffective assistance of counsel. This new theory, i.e., his trial counsel was ineffective for failing to consider Edwards and move to suppress the October 20, 1999 statements, was predicated upon an October 14, 1999 interview which was not contained within the record. This new theory of ineffective assistance of counsel could only be raised in a petition for postconviction relief.
{¶50} The fact that an appellant raised ineffective assistance of counsel claims in a direct appeal does not bar such a claim in a petition for postconviction relief, provided the claim in the postconviction exercise is predicated upon evidence outside the record. We must look to the substance of the argument itself to determine whether it is barred by res judicata. In this matter, appellant raised an entirely new theory of ineffective assistance of counsel in his petition for postconviction relief, and the trial court erred by barring this claim by the doctrine of res judicata. Id. at ¶65-66.
{¶51} The same analysis applies here. Appellant’s claim in his petition for postconviction relief contains a new theory of ineffective assistance of counsel. Even though the medical records were available to appellant at the time of the original appeal, this theory is based on evidence not contained in the prior record on appeal. Therefore, res judicata should not have precluded consideration of appellant’s petition for postconviction relief.