559 N.E.2d 1370 | Ohio Ct. App. | 1988
The petitioner-appellant, Leon Mitchell, appeals the trial court's dismissal of his petition for post-conviction relief.
On December 17, 1982, the appellant was indicted for murder, in violation of R.C.
Mitchell appealed his conviction, contending that the jury's verdict of murder was against the manifest weight of the evidence, since, he claimed, he had proven self-defense by a preponderance of the evidence. The court of appeals found no such error and affirmed the trial court's conviction in State v.Mitchell (Oct. 25, 1984), Cuyahoga App. No. 48039, unreported. The Supreme Court overruled the appellant's motion for leave to appeal the court of appeals' decision. Throughout his direct appeals, the appellant continued to be represented by his trial counsel.
On May 19, 1986, the appellant, represented by new counsel, filed his petition for post-conviction relief, claiming that his constitutional rights were denied through ineffective assistance of counsel at trial and on direct appeal. On August 7, 1986, the trial court dismissed the appellant's petition and, on February 27, 1987, the court filed its findings of fact and conclusions of law.
The petitioner-appellant now appeals, bringing two assignments of error:
"I. The court committed prejudicial error in holding that Section
"II. Petitioner was denied the effective assistance of trial and appellate counsel in this case and was entitled to post-conviction relief."
These assignments of error are overruled. Since they are interrelated, they will be addressed together.
The appellant claims that the trial court erred in finding that the post-conviction remedies provided by R.C.
The United States Constitution *118
assures the right to the effective assistance of counsel on a criminal defendant's first appeal as of right. Evitts v. Lucey
(1985),
R.C.
Furthermore, where the trial court finds such a constitutional deprivation so as to render a judgment of conviction void or voidable, R.C.
In Perry, supra, paragraph five of the syllabus, explains: "A judgment of conviction is void within the meaning of Section
The appellant argues that post-conviction remedies provided by R.C.
Should Ohio's statute providing for post-conviction remedies be applicable to appellate court decisions, either of two patently unacceptable results follows: in effect, the criminal defendant would either be petitioning the trial court (1) to render its own judgment of conviction void or voidable due to the denial of constitutional guarantees at the appellate level, or (2) to render the judgment of the superior appellate court void or voidable due to the denial of constitutional guarantees at the appellate level. We find that neither of these results is acceptable; both are clearly outside the purview of the Ohio Legislature in its enactment of R.C.
In State v. Rone (Aug. 31, 1983), Hamilton App. No. C-820640, unreported, the Court of Appeals for Hamilton County addressed the applicability of Ohio's post-conviction remedies to appellate court judgments. The court determined at 6:
"[A] meritorious claim of ineffective assistance of appellate counsel can, in no way, be construed to render a judgment of conviction void * * *. Moreover, we seriously question whether such a claim would make the trial court's judgment voidable in the sense that it would require that the conviction be vacated and set aside." (Emphasis sic.)
The court further determined at 7:
"[T]he jurisdiction of an intermediate appellate court is superior to that of a trial court, and a trial court may take no action to impede or impinge upon the jurisdiction of a reviewing court * * * by ordering a new appeal, nor does it have the power, as an inferior tribunal, to vacate or set aside a judgment of the court of appeals."
Accordingly, we find that R.C.
On appeal, the appellant also claims that the trial court erred in denying him post-conviction relief due to the ineffective assistance of trial counsel. We find no such error.
In this appeal, the appellant contends that counsel's failure to object to the court's instructions on the issue of intent was improper and prejudicial. He also contends that counsel's failure to object to the court's failure to instruct the jury on the lesser included offense of voluntary manslaughter was unfairly prejudicial. We disagree with these contentions, finding that a trial attorney does not violate any substantial duty in failing to make futile objections.
After reviewing the merits of the appellant's ineffective assistance claim, the trial court determined that "Petitioner fails to demonstrate a substantial violation of defense counsel's duties." Absent a showing of abuse of discretion, a reviewing court will not overrule the trial court's finding on a petition for post-conviction relief which is supported by competent and credible evidence.
In Ohio, a properly licensed attorney is presumed competent.Vaughn v. Maxwell (1965),
In this case, the appellant's trial counsel moved the court for an acquittal of the murder charge against the defendant and requested that the jurors deliberate on the lesser included offense of voluntary manslaughter, R.C.
An instruction on a lesser included offense is appropriate only where "the trier of fact can find for the defendant and against the state on some element of the greater offense which is not required *120
to prove the commission of the lesser offense and for the state on the elements required to prove the commission of the lesser offense." State v. Solomon (1981),
In the instant case, the record demonstrates that the trial court was acting within the bounds of its discretion in determining not to instruct the jury on voluntary manslaughter. The appellant has failed to demonstrate that counsel violated a substantial duty in failing to object to the absence of the instruction. Furthermore, even if there had been such a duty, the appellant has failed to demonstrate that he was thereby prejudiced. See Lytle, supra.
We further find that the appellant has failed to effectively demonstrate that trial counsel violated any substantial duty in failing to object to the court's instructions on causation and intent to kill. In its dismissal of the appellant's petition, the court stated:
"Likewise, any requested instruction that the State prove specific intent would have been contrary to the law of Ohio and summarily overruled. Petitioner was charged with murder in violation of Ohio Revised Code, Section
Accordingly, we find that the charge to the jury was proper. Furthermore, the appellant has failed to demonstrate unfair prejudice. On direct appeal, this court reviewed the record and determined that the jury's verdict was supported by the manifest weight of the evidence. Had counsel objected to the instruction, the weight of the evidence would have nonetheless sustained the verdict. Therefore, we find no prejudice.
Accordingly, we affirm the trial court's dismissal of the petitioner-appellant's petition for post-conviction relief made pursuant to R.C.
Judgment affirmed.
NAHRA, C.J., and CARDINAL, J., concur.
JOHN G. CARDINAL, J., of the Ashtabula County Court of Common Pleas, sitting by assignment.