STATE OF OHIO, Plaintiff-Appellee -vs- MARVIN JOHNSON, Defendant-Appellant
Case No. 12 CA 19
COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
April 1, 2013
2013-Ohio-1398
Hon. W. Scott Gwin, P. J.; Hon. William B. Hoffman, J.; Hon. John W. Wise, J.
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 03 CR 116. JUDGMENT: Affirmed.
For Plaintiff-Appellee
DANIEL G. PADDEN PROSECUTING ATTORNEY 139 West 8th Street Post Office Box 640 Cambridge, Ohio 43725
For Defendant-Appellant
KATHRYN L. SANDFORD ASSISTANT PUBLIC DEFENDER ALLEN M. VENDER ASSISTANT PUBLIC DEFENDER 250 East Broad Street, 14th Floor Columbus, Ohio 43215
{¶1} Appellant Marvin Johnson appeals from the denial of his petition for post-conviction relief subsequent to his convictions, in the Court of Common Pleas, Guernsey County, for aggravated murder, kidnapping, rape, and aggravated robbery. Appellant ultimately was sentenced to the death penalty. The relevant facts leading to this appeal are as follows.
{¶2} On August 15, 2003, appellant violently attacked Daniel Bailey, the 13–year-old son of his former girlfriend, Tina Bailey, with a blunt instrument in the Bailey home in Cambridge, Ohio. After beating Daniel, appellant gagged and tied up the child, and then put him in the basement.
{¶3} When Tina returned home from work, appellant forced her at knifepoint to perform oral sex. He promised he would call to tell her what he had done with Daniel. Appellant thereafter persuaded Tina to go to her bank, where she withdrew $1,000.00 at the drive-through window. Appellant then told Tina to go home. She found Daniel, gagged and bound, in the basement behind the washing machine. Daniel did not survive the attack.
{¶4} On August 25, 2003, the Guernsey County Grand Jury indicted appellant on two counts of aggravated murder. Count 1 was charged pursuant to the felony-murder provision in
{¶5} On July 20, 2005, appellant filed a petition for post-conviction relief in the trial court. Appellant filed several amendments to the petition as well. On December 19, 2005, the trial court denied appellant‘s petition for post-conviction relief, as well as his corresponding motion to conduct discovery and request for an evidentiary hearing. Appellant filed an appeal with this Court; we affirmed the trial court‘s decision on April 10, 2007. See State v. Johnson, Guernsey App.No. 2006-CA-04, 2007-Ohio-1685.
{¶6} On April 12, 2012, appellant filed a successive petition for post-conviction relief.1 The trial court dismissed said petition on July 18, 2012.
{¶7} On August 17, 2012, appellant filed a notice of appeal. He herein raises the following four Assignments of Error:
{¶8} “I. THE TRIAL COURT ERRED WHEN IT DID NOT DECLARE
{¶9} “II. THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT APPELLANT RELIEF OR, AT A MINIMUM, AN EVIDENTIARY HEARING.
{¶10} “III. THE TRIAL COURT ERRED WHEN IT DENIED JOHNSON‘S MOTION FOR LEAVE TO TO (SIC) CONDUCT DISCOVERY.
I.
{¶12} In his First Assignment of Error, appellant challenges the constitutionality of the post-conviction relief statutory scheme in
{¶13}
{¶14} “Except as otherwise provided in
{¶15} The requirement for second or successive petitions, as pertinent to the case sub judice, is detailed in
{¶16} “(A) Whether a hearing is or is not held on a petition filed pursuant to
{¶17} “(1) Both of the following apply:
{¶19} “(b) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted or, if the claim challenges a sentence of death that, but for constitutional error at the sentencing hearing, no reasonable factfinder would have found the petitioner eligible for the death sentence.
{¶20} “***”
{¶21} Although not specifically couched as a constitutional argument, appellant, referencing the “may not entertain” language utilized in
{¶22} Appellant next maintains that the statutory scheme set forth above violates the Supremacy Clause of the
{¶23} As recognized by the Ohio Supreme Court in State v. Sinito (1975), 43 Ohio St.2d 98, 101, 330 N.E.2d 8960, enactments of the Ohio General Assembly are presumed to be constitutional. In State v. McGuire, Preble App.No. CA2000-10-011, 2001 WL 409424, the Twelfth District Court of Appeals thoroughly reviewed these same three constitutional claims in a post-conviction relief appeal and rejected all of them. We herein adopt the basic rationale of the McGuire decision and likewise find no merit in appellant‘s above constitutional arguments as to
{¶24} Appellant lastly maintains that the aforementioned post-conviction statutes are unconstitutional as applied, as the “clear and convincing” standard set forth therein is effectively a legislative attempt to deprive him of the utilization of established judicial standards of review. However, we find such conclusory allegations of inadequate review standards fail to demonstrate that Ohio‘s post-conviction relief scheme is unconstitutional as applied. See State v. Gillard, Stark App.Nos. 1997CA00318, 1997CA00410, 1998 WL 351442, citing State vs. Sklenar (1991), 71 Ohio App.3d 444, 449, 594 N.E.2d 88, and State vs. Fox (May 16, 1997), Wood App. No. WD-96-031.
{¶25} Appellant‘s First Assignment of Error is therefore overruled.
II.
{¶26} In his Second Assignment of Error, appellant contends the trial court erred in denying him post-conviction relief, or, at minimum, an evidentiary hearing on his petition. We disagree.
{¶28} The Ohio Supreme Court has also recognized: “In postconviction cases, a trial court has a gatekeeping role as to whether a defendant will even receive a hearing.” State v. Gondor, 112 Ohio St.3d 377, 388, 860 N.E.2d 77, 2006-Ohio-6679, ¶ 51. A petition for postconviction relief does not provide a petitioner a second opportunity to litigate his or her conviction, nor is the petitioner automatically entitled to an evidentiary hearing on the petition. State v. Wilhelm, Knox App.No. 05-CA-31, 2006-Ohio-2450, ¶ 10, citing State v. Jackson (1980), 64 Ohio St.2d 107, 110, 413 N.E.2d 819. As an appellate court reviewing a trial court‘s decision in regard to the “gatekeeping” function in this context, we apply an abuse-of-discretion standard. See
{¶29} Appellant herein subdivides this assigned error into fourteen claims, which we summarize as follows:
{¶30} 1. Defense counsel‘s failure to object to the trial court‘s reading of all seven statutory mitigating factors to the jury at voir dire.
{¶31} 2. Defense counsel‘s failure to object to victim evidence, such as references to Daniel‘s hobbies and good grades, during opening statements and at trial.
{¶32} 3. Defense counsel‘s failure to object to and references made to appellant‘s criminal history at trial.
{¶33} 4. Defense counsel‘s failure to utilize a forensic pathologist as an expert witness at trial.
{¶34} 5. Defense counsel‘s failure to utilize a neuropsychologist during mitigation.
{¶35} 6. Defense counsel‘s failure to utilize a substance abuse expert during mitigation.
{¶36} 7. Defense counsel‘s failure to utilize an endocrinologist during mitigation regarding appellant‘s claimed diabetes issues.
{¶37} 8. Defense counsel‘s failure to utilize a cultural expert.
{¶39} 10. Defense counsel‘s alleged failure to competently present family witnesses.
{¶40} 11. Defense counsel‘s failure to have appellant fully evaluated for competency.
{¶41} 12. Claim of a Brady violation.
{¶42} 13. Claim of a Crawford violation.
{¶43} 14. Claim of ineffective assistance of appellate counsel.
Claims 1, 2, 3, 9, and 11
{¶44} Our review of the procedural history of this matter reveals the Ohio Supreme Court previously addressed identical or substantially similar claims to numbers 1, 2, 3, 9, and 11. See the Supreme Court‘s 2006 Johnson opinion at ¶¶ 130, ¶ 139, ¶ 204, ¶ 136, ¶ 150, and ¶ 155.
{¶45} “Res judicata bars a defendant who was represented by counsel from raising an issue in a petition seeking post-conviction relief if the defendant raised or could have raised the issue at trial or on direct appeal.” State v. Aleshire, Licking App.No. 2011–CA–99, 2012-Ohio-772, ¶ 21, citing State v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233, 1996–Ohio–337, at the syllabus. Although appellant was permitted to represent himself during a portion of his trial, he was represented by counsel in his direct appeal to the Ohio Supreme Court. Therefore, we find res judicata applies to the aforesaid five claims.
{¶46} In these claims, appellant contends that trial counsel was ineffective for failing to utilize additional or better medical or scientific expert assistance for his defense or case preparation. However, generally, “ ‘[a] postconviction petition does not show ineffective assistance merely because it presents a new expert opinion that is different from the theory used at trial.’ ” State v. White, Ashland App.No. 97COA01229, 1998 WL 515944, quoting State v. Combs (1994), 100 Ohio App.3d 90, 103, 652 N.E.2d 205. Moreover, because appellant herein utilized a second post-conviction petition (in this case nearly eight years after his conviction), it is incumbent under
Claims 7, 8, and 10
{¶47} In these claims, appellant again raises issues concerning the lack of certain defense experts on his behalf, in this instance to present medical and cultural testimony, as well as trial counsel‘s alleged failure to further utilize information or testimony from family members. However, this Court previously addressed identical or substantially similar claims in our redress of the appeal of appellant‘s first post-conviction petition. See Johnson, 2007-Ohio-1685, at ¶¶ 119, 105-109, ¶ 96. “Res judicata applies to bar raising piecemeal claims in successive postconviction relief petitions or motions to withdraw a guilty plea that could have been raised, but were not, in the first postconviction relief petition or motion to withdraw a guilty plea.” State v. Kent, Jackson App.No. 02CA21, 2003–Ohio–6156, ¶ 6.
Claim 12
{¶49} In his twelfth claim, appellant raises Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. In order to establish a Brady violation, a defendant must prove that the prosecution failed to disclose evidence upon request, the evidence was favorable to the defense, and the evidence was material. State v. Garn (Feb. 21, 2003), Richland App.No. 02CA45, ¶ 23, citing Moore v. Illinois (1972), 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706. However, a common pleas court may apply the doctrine of res judicata to dismiss a post-conviction claim when the claim presents a matter that could fairly have been determined without resort to evidence dehors the record. See, e.g., State v. Dixon, Richland App.No. 2004-CA-90, 2005-Ohio-2846, ¶ 27. While it appears that appellant‘s Brady violation allegation is partially based on a post-trial 2012 investigative interview with Mickey Alexander, a former cellmate who had given police information about appellant, we are unpersuaded that appellant was unavoidably prevented from obtaining the subsequent information from Alexander.
{¶50} Upon review, we find no error of law in the trial court‘s rejection of claim 12.
Claim 13
{¶51} Appellant next raises a claim of a confrontation violation pursuant to Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177. In Crawford, the United States Supreme Court held that under the Confrontation Clause, “testimonial” statements of a witness who does not appear at trial may not be admitted
Claim 14
{¶52} In his last claim under this assigned error, appellant raises an allegation of ineffective assistance of appellate counsel. However, claims regarding ineffective assistance of appellate counsel are not cognizable in post-conviction proceedings brought pursuant to
{¶53} We therefore find no error of law in the trial court‘s rejection of claim 14.
{¶54} In conclusion, we find no error as a matter of law in the trial court‘s denial of appellant‘s successive petition for post-conviction relief, and we further find no abuse of discretion in the trial court‘s denial of a hearing thereon. Appellant‘s Second Assignment of Error is therefore overruled.
III., IV.
{¶55} In his Third Assignment of Error, appellant contends the trial court erred in denying him post-conviction discovery. In his Fourth Assignment of Error, appellant contends the trial court erred in not granting him funding for neurological testing. We disagree on both counts.
{¶57} In regard to the appointment of an expert, we have previously recognized that such an appointment is not required if the trial court correctly determines that the allegations in a defendant‘s post-conviction motions do not warrant evidentiary hearings. See State v. Lampley, Richland App.No. 10-CA-106, 2011-Ohio-1204 ¶ 18. In light of our previous conclusions herein, we find no reversible error by the trial court concerning a post-conviction neurological expert.
{¶58} Appellant‘s Third and Fourth Assignments of Error are overruled.
{¶59} For the reasons stated in the foregoing opinion, the decision of the Court of Common Pleas, Guernsey County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Hoffman, J., concur.
STATE OF OHIO, Plaintiff-Appellee -vs- MARVIN JOHNSON, Defendant-Appellant
JUDGMENT ENTRY
Case No. 12 CA 19
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Guernsey County, Ohio, is affirmed.
Costs assessed to appellant.
JUDGES