State v. ParksState v. Parks
Jabrown R. Parks, pro se, PID# A763-919, Lake Erie Correctional Institution, 501 Thompson Road, P.O. Box 8000, Conneaut, OH 44030 (Defendant-Appellant).
OPINION
THOMAS R. WRIGHT, J.
{¶1} Parks appeals the judgment dismissing his motion for postconviction relief. We affirm.
{¶2} On July 2, 2018, a man wearing a visored helmet and carrying a gasoline can robbed a bank in Willoughby. Thereafter, officers learned that the man was suspected tо have fled in a white Lexus. Officers engaged in a high-speed chase of the Lexus but ultimately lost sight of the car, which was registered to Parks’ brother. Willoughby officers in unmarked vehicles surveilled Parks’ brother‘s address on East
{¶3} After further investigation, Parks was indicted on seven charges related to the bank robbery. Parks moved to suppress evidence resulting from his detention on the day of the robbery, including his purported statements to Ciаra. During the suppression hearing, Detective Burrington testified as to the events set forth above. Relevant to the present proceedings, the officer further testified that the unmarked Willoughby police vehicles that were used in detaining Parks did not contain video recording devices. Further, Deteсtive Burrington noted that he was not aware of the Cleveland Police Department‘s policy regarding recording devices in that department‘s marked cars, and he was informed that no recording of Parks’ detention at the East 162nd Street residence existed. Ultimately, the court denied the supprеssion motion.
{¶4} The case proceeded to jury trial. The jury found Parks guilty on all counts, and the court sentenced him to an aggregate of 22 years in prison. Parks appealed, and this court affirmed. State v. Parks, 11th Dist. Lake No. 2019-L-097, 2020-Ohio-4524.
{¶6} On appeal, Parks assigns the following three errors:
{¶7} “[1.] The trial court erred in denying the petition without a hearing where the petition and attached evidentiary materials clearly made out a prima facie cause of a constitutional violation.”
{¶8} “[2.] The trial court erred in denying appellant a hearing on his petition, depriving appellant of liberties secured by the U.S. Const. Amend XIV, and Ohio Const. Art. I, Sections 1, 2, 10 and 16, including meaningful access to the courts of this state.”
{¶9} “[3.] The trial court erred when it applied the doctrine of res judicata to appellant‘s claims of ineffective assistance of counsel where the evidence in support of
{¶10} We generally apply an abuse of discretion standard to our review of a trial court‘s decision to dismiss a petition for postconviction relief without a hearing. State v. Jackson, 11th Dist. Lake No. 2019-L-042, 2019-Ohio-4735, ¶ 11. “However, if a trial court denies a petition on legаl grounds, e.g., by application of the doctrine of res judicata, this court‘s review is de novo.” State v. Davies, 11th Dist. Ashtabula No. 2017-A-0013, 2017-Ohio-7961, ¶ 12, citing State v. Butcher, 11th Dist. Portage No. 2013-P-0090, 2014-Ohio-4302, ¶ 6.
{¶11} The postconviction relief statute,
{¶12} “[A] criminal defendant seeking to challenge his conviction through a petition for postconviction relief is not automatically entitled to a hearing.” State v. Burke, 11th Dist. Trumbull No. 2020-T-0013, 2020-Ohio-5474, ¶ 15, quoting State v. Calhoun, 86 Ohio St.3d 279, 282, 714 N.E.2d 905 (1999), citing State v. Cole, 2 Ohio St.3d 112,
{¶13} Here, in his first two assigned errors, Parks argues a hearing was warranted on his petition because he sufficiently demonstrated a constitutional violation resulting from the withholding of the Cleveland Police Department recording of his detention at East 162nd Street, which could have been used for impeachment purposes.
{¶14} Of significant note, Parks alleges in his petition that the recording of his detention was missing, destroyed, and withheld, implicitly assuming that a recording was made of his detention. However, as the trial court recognized, Parks does not allege any operative facts establishing that any such recording ever actually existed. Further, to the extent a potential recording should have been disclosed, the trial court concluded that Parks’ claim was barred by res judicata.
{¶15} Under the doctrinе of res judicata, “a defendant who was represented by counsel is barred from raising an issue in a petition for postconviction relief if the defendant raised or could have raised the issue at trial or on direct appeal.” Jackson, 2019-Ohio-4735, at ¶ 15, quoting State v. Adams, 11th Dist. Trumbull No. 2003-T-0064, 2005-Ohio-348, ¶ 38, citing State v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233 (1996), syllabus. Where the claims raised in a petition for postconviction relief are barred by res judicata, the trial court need not hold a hearing prior to dismissing the petition. State v. Gaines, 11th Dist. Trumbull No. 2018-T-0075, 2019-Ohio-2097, ¶ 26.
{¶16} As set forth above, Parks provided no basis in his petition for concluding that a recording of his detention was ever made. Any recording was the specific subject
{¶17} On appeal, Parks does not address the trial court‘s determination that his arguments regarding the state‘s alleged failure to produce exculpatory evidence is barred by res judicata. Perhaps to avoid the application of res judicata, Parks asserts that, after his appeal, he learned of a “model policy” published in 2005 by the International Association of Chiefs of Police with respect to such recordings. Parks places great weight on his argument that this policy has some authoritative value, and he has attached the policy to his appellate brief. Parks appears to contend that a recording of his detention must have been made pursuant to the provisions of the model policy and a news report from 2016 indicating thаt funds had been allocated to the Cleveland Police Department to outfit their cruisers with dash cams.
{¶18} Parks’ argument is speculative and relies on materials that, based upon their publication dates, would have been available at the time of trial. See Davies, 2017-Ohio-7961, at ¶ 15 (to avoid res judicata, the mаterials on which the petitioner relies must not have existed or been available at the time of trial). Moreover, Parks did not present this argument or these materials to the trial court in his petition, and they cannot now be
{¶19} Based on the foregoing, Parks has not demonstrated that the trial court abused its discretion in dismissing his petition without a hearing insofar as he claimed a cоnstitutional violation through the withholding of evidentiary material. Accordingly, Parks’ first and second assigned errors lack merit.
{¶20} With respect to his third assigned error, Parks maintains that the trial court erred in concluding that his claims of ineffective assistance of counsel were barred by res judicata. Parks’ argument is misрlaced, as the trial court did not apply res judicata to these claims. Instead, the trial court concluded that Parks claims were insufficient to demonstrate the two prongs of the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶21} To demonstrate ineffective assistance of counsel,
“First, the defendant must show that counsel‘s performance was deficient. This requires showing that counsel mаde errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel‘s errors were so serious as to deprive the defendаnt of a fair trial, a trial whose result is reliable.”
{¶22} Before the trial court grants a hearing on a postconviction petition claiming 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.‘” (Emphasis sic.) Calhoun at 283, quoting State v. Jackson, 64 Ohio St.2d 107, 112, 413 N.E.2d 819 (1980), syllabus. With respect to the prejudice prong of Strickland, “[t]he defendant must show that there is a reasоnable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Strickland at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. “If a claim can be disposed of by showing a lack of sufficient prejudiсe, there is no need to consider the first prong, i.e., whether trial counsel‘s performance was deficient.” State v. Moore, 11th Dist. Geauga No. 2011-G-3027, 2012-Ohio-3885, ¶ 69, citing State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989), citing Strickland at 695-696.
{¶23} Aside from his misplaced res judicata arguments, on appeal Parks focuses on defense counsel‘s failure to impeach witness testimony at the suppression hearing with a pоlice report indicating that he was placed in the back of a marked Cleveland police cruiser after he exited the car driven by Ciara. To the extent that Parks’ petition could be read as raising this argument, it is not clear how this evidence could have been used for impeaсhment purposes. Detective Burrington testified at the suppression hearing that Parks was placed in a Cleveland police car when he was detained at East 162nd Street. Another Willoughby officer, Detective Krejsa, testified that, when he arrived at the
{¶24} Parks next maintains that counsel did not notify him of his right to testify at the suppression hearing, аnd the materials attached to his petition indicate that he wanted to explain his version of events at the hearing. To the extent that Parks is arguing that he would have testified that he never apologized to Ciara or asked her to apologize to anyone else, Parks does not argue how this testimony, although contrary to that of the officers, establishes prejudice. Even if Parks had testified that he never said what was claimed, this does not demonstrate that the claimed statements were made during an unmirandized custodial interrogation subjecting them to suppression. See State v. Starkey, 2012-Ohio-6219, 985 N.E.2d 295, ¶ 25 (11th Dist.) (absent a сonstitutional violation, suppression of evidence is not an appropriate remedy). Moreover, assuming that the trial court were to find Parks credible, we recognized in Parks’ direct appeal that the permissibility of the continued detention of Parks was not based on his apologеtic statements alone:
According to Burrington, [Parks], while exiting the car, made incriminating statements, by telling Ciara that he was sorry. Burrington testified that [Parks] also directed Ciara to tell the police that she had just picked him up from the rec center. Burrington perceived this as an attempt by [Parks] to establish an alibi. Further, Burrington said that [Parks] fit the physical description of the suspect as a thin male who was approximately six feet tall and that during his initial detention, the police also learned that [Parks] was on federal probation for bank robbery.
Parks, 2020-Ohio-4524, at ¶ 35.
{¶26} Last, on appeal, Parks briefly argues that his attorney was ineffective for failing to file a notice of alibi and failing to present expert testimony. These arguments do not appear to have been raised in Parks’ petition, and we will not address them. See Estate of Oliver, 144 Ohio App.3d at 383. Accordingly, Parks’ third assigned error lacks merit.
{¶27} The judgment is affirmed.
MARY JANE TRAPP, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
THOMAS R. WRIGHT
JUDGE