STATE OF OHIO, Respondent-Appellee, vs. MARK PICKENS, Petitioner-Appellant.
APPEAL NO. C-130004
TRIAL NO. B-0905088
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
August 5, 2016
2016-Ohio-5257
FISCHER, P.J., CUNNINGHAM and STAUTBERG, JJ.
Criminal Appeal From: Hamilton County Court of Common Pleas. Judgment Appealed From Is: Reversed and Cause Remanded.
Kathryn L. Sandford and Allen M. Vender, Assistant Ohio Public Defenders, for Petitiоner-Appellant.
Per Curiam.
{1} Petitioner-appellant Mark Pickens appeals the Hamilton County Common Pleas Court‘s judgment dismissing his
{2} In 2010, Pickens was convicted on three counts of aggravated murder. The trial court, upon the jury‘s recommendation, imposed for each murder a sentence оf death. In 2014, the Ohio Supreme Court affirmed Pickens‘s convictions. State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023.
{3} Pickens had filed with the common pleas court in 2011 a petition under
{4} On October 31, 2012, the common pleas court conducted a hearing on Pickens‘s discovery motions and on the state‘s motion to dismiss Pickens‘s postconviction petition. Those matters were submitted to the court upon arguments presented at the hearing by the assistant prosecuting attorney and Pickens‘s counsel and upon pleadings, motions, and responses filed prior to the hearing, including Pickens‘s postconviction petition аnd its amendments and attachments, the state‘s motion to dismiss the petition, and Pickens‘s reply to the motion to dismiss. On November 5, the common pleas court overruled Pickens‘s discovery motions. And on December 5, the court filed an entry captioned “Proposed Findings of Fact, Conclusions of Law, and Entry Dismissing Petition to Vacate.”
{5} From that entry, Pickens aрpeals. On appeal, he advances four assignments of error.
Findings of Fact and Conclusions of Law
{6} In his first assignment of error, Pickens contends that the common pleas court‘s procedure in deciding his postconviction petition denied him the protections afforded by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. He asserts that the сourt‘s entry dismissing his petition, captioned “Proposed Findings of Fact, Conclusions of Law, and Entry Dismissing Petition to Vacate,” demonstrates a total abdication to the state of the court‘s duty under
{7} The common pleas court‘s duties under
{8} The court below did not conduct an evidentiary hearing on Pickens‘s postconviction petition. At the hearing on the state‘s motion to dismiss the petition, the court took the matter under submission upon counsel‘s arguments, the pеtition and its amendments and attachments, the motion to dismiss, and Pickens‘s reply to that motion. The court requested nothing more from either party. Specifically, the
{9} The court then dismissed Pickens‘s petition by filing an entry captioned “Proposed Findings оf Fact, Conclusions of Law, and Entry Dismissing Petition to Vacate.” (Emphasis added.) Although the state, in its appellate brief, asserts that it “sua sponte offered the proposed findings in conjunction with [its] motion to dismiss Pickens’ post-conviction petition,” the record does not show that they were filed in the case, attached to any pleading or motion, solicited by the court, or served on opposing counsel. But based on the state‘s statement in its brief, along with the presence of the word “Proposed” in the caption of the court‘s entry granting the state‘s motion to dismiss the petition, we may reasonably conclude that the court adopted verbatim proposed findings of fact and сonclusions of law that had been submitted in written form by the state. And from the absence of any suggestion in the record that Pickens knew that the state had provided the court with proposed findings of fact and conclusions of law or that Pickens had been afforded an opportunity to respond or to propose his own, the state‘s submission can оnly be said to have been ex parte.
{10} State v. Roberts. In State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, the Ohio Supreme Court vacated Roberts‘s death sentence and remanded for resentencing, because its “confidence in the trial court‘s sentencing opinion [had been] undermined by the fact that the trial judge directly involved the prosecutor in preparing the sentencing opinion and did so оn an ex parte basis.” Id. at ¶ 159. The Supreme Court concluded that the trial court had failed to follow the “proper process,” because the “delegation of any degree of responsibility in [its] sentencing opinion does not comply with [the mandate of]
{11} This conclusion, the Supreme Court declared, was “compelled particularly in light of the trial court‘s ex parte communications about sentencing with the prosecutor in preparing thе sentencing opinion.” Id. at ¶ 161. The Supreme Court determined that, because of the trial court‘s ex parte communications with the prosecutor without defense counsel‘s knowledge or participation, the trial court‘s “grievous violation of the statutory deliberative process” could neither be deemed harmless error nor be curеd by the Supreme Court‘s own independent assessment. Id. at 162-163. Accordingly, the Supreme Court vacated Roberts‘s death sentence and remanded the case for a new sentencing opinion. Id. at ¶ 167.
{12} Roberts followed. The Sixth Appellate District in Sedlack v. Palm, 189 Ohio App.3d 135, 2010-Ohio-3924, 937 N.E.2d 642 (6th Dist.), followed Roberts to reverse and remand a domestic relations court‘s entry adopting a child-visitation decision by a magistrate who, following a hearing on mоtions to modify visitation, had contacted the father‘s counsel regarding preparation of the decision, without notice to or input by opposing counsel. The magistrate‘s contact with the father‘s counsel was undisputed. And the court found that this “blatant instance of ex parte communication * * * at a crucial point in the judicial prоcess” constituted a “grievous violation of the deliberative process” and “undermin[ed] [the] court‘s confidence in the impartiality of the magistrate‘s decision.” Id. at ¶ 12.
{14} Still other appellate districts have found Roberts additionally distinguishable based on the procedural posture of the case in Roberts—on direct appeal from a death sentence—and that of a case on appeal from the dismissal of a postconviction petition. The Seventh District in State v. Ahmed, 7th Dist. Belmont No. 05-BE-15, 2006-Ohio-7069, distinguished Roberts in rejecting a challenge to the findings of fact and conclusions of law issued in an entry dismissing a postconviction petition. Id. at 65-73. There, the findings of fact and conclusions of law were drafted by the state, but were not demonstrably the product of an ex parte communication, because the prosecution had filed them with the common pleas court and had served them on the petitioner‘s counsel, the common pleas court had affоrded the petitioner‘s counsel the opportunity to file objections or to submit findings of fact and conclusions of law, and counsel had filed objections. Id. at ¶ 70. The Seventh District further held that the common pleas court had not violated
{15} The Eleventh Appellate District in its October 2010 decision in State v. Jackson, 190 Ohio App.3d 319, 2010-Ohio-5054, 941 N.E.2d 1221 (11th Dist.), ordered resentencing for Roberts‘s partner in the murder of her husband, because the same trial court had employed the same procedure in drafting Jackson‘s death-sentence opinion that it had employed in drafting Roberts‘s opinion. But seven mоnths earlier, the Eleventh District had rejected the Roberts challenge advanced by Jackson on appeal from the overruling of his
{16} Despite this clear basis for finding Roberts inapplicable, the Eleventh District in Jackson I went on to further distinguish Roberts. The court read the Seventh District‘s decision in Ahmed to hold that the rule of Roberts does not apply in postconviction proceedings. Id. at ¶ 36. Postconviction proceedings, the court noted, are civil in nature. And in
{17} The statutory deliberative process, due process, and ex parte communication. The Eleventh District in Jackson and the Seventh District in Ahmed concluded that Roberts was inapplicable, because the findings of fact and conclusions of law dismissing those postconviction pеtitions had not been the product of an ex parte communication between the state and the court. Those decisions may also be read to hold that the rule of Roberts does not apply in postconviction proceedings. We respectfully disagree.
{18} Certainly, there is a reasonable basis for distinguishing between the duty imposed under
{19} But the issue here is not, as the state insists, whether the findings of fact and conclusions of law contained in the entry dismissing Pickens‘s postconviction petition were adequate to their task. Like
{20} Moreover, the procedural protections afforded by the Due Process Clause of the Fourteenth Amendment require that parties to an action be given reasonable notice and an opportunity to be
{21} In Roberts, the trial court‘s ex parte communications with the state in preparing its death-sentence opinion, without defense counsel‘s knowledge or participation, so “undermined” the Supreme Court‘s “confidence in the * * * opinion” that the trial court‘s failure to engage in the “deliberative process” mandated by
{22} Here, the common pleas court‘s dismissal of Pickens‘s petition by filing the state‘s “Proposed Findings of Fact and Conclusions of Law” suggests that the court, in “making” the findings of fact and conclusions of law, did not engage in the “deliberative process” mandated by
{23} We, therefore, sustain the first assignment of error.
{24} Our disposition of Pickens‘s first assignment of error renders moot the challenges advanced in his remaining assignments of error. We, therefore, do not reach the merits of those challenges.
{25} We reverse the common pleas court‘s entry dismissing Pickens‘s postconviction petition, because the court‘s ex parte communication with the state in making its findings of fact and conclusions of law violated due process and underminеd any confidence that the court had engaged in the deliberative process mandated by
Judgment reversed and cause remanded.
FISCHER, P.J., CUNNINGHAM and STAUTBERG, JJ.
Please note:
The court has recorded its own entry on the date of the release of this opinion.