State v. RickardState v. Rickard
This аppeal comes before the court from a judgment of the Lucas County Court of Common Pleas that denied appellant’s seсond successive petition for post-conviction relief.
In June 1993, appellant, Joseph P. Rickard, was convicted of the crimе of murder, a violation of
In March 1995, appellant filed, pursuant to
On May 23, 1996, appellant filed a second petition for post-conviction reliеf. He alleged that his conviction was void or voidable on constitutional grounds. Appellant argued that his right to effective assistance of counsel under the Sixth Amendment to the Constitution of the United States was denied because (1) counsel failed to call a key alibi witness, (2) counsel failed to object to the misconduct of the prosecutor when the prosecutor withheld material evidence, and (3) сounsel failed to move for a mistrial when the trial court failed to disclose material information that wrongfully denied the defense the right tо a peremptory challenge. Appellant’s petition was supported by the affidavit of his alibi witness, who stated that, prior to appellant’s murder trial, his trial counsel was aware of the fact that she could provide an alibi for appellant.
On June 12, 1996, and without holding a hearing, the trial court denied appellant’s petition. The court determined that, under
Appellant appeals this judgment and sets forth the following assignments of error:
“I.
“Was apрellant’ denied effective assistance of counsel before and during the trial of which the outcome of his trial would have been different or changed? By his counsel’s acts and failure to guaranteed [sic ] the defendant’s rights under the Ohio Constitution and under the United States Constitution? Guаranteed by the *187 Sixth Amendment to the U.S. Constitution, and Article One, Section Ten, of the Ohio Constitution.
“II.
“Did the trial counsel error [sic ] to the substantial prejudice of appellant in changing the jury by denying the defendant-appellant witness or witnesses who would have put him across town and away from the scene?
“HI.
“Did the trial counsel error [sic ] and trial counsel, when the misconduct of the prosecutor withheld material evidence?
“IV.
“Did the trial counsel errоr [sic ] in not holding evidentiary hearing as required bySection 2953.21 of the Ohio Revised Code, as a determination on the merits of the petition could not be mаde without resort to evidence dehors the record at a hearing since appellant claimed grounds for relief not entirely disputed by thе record?
“V.
“Did the trial court fail to satisfy the requirement ofSection 2953.21 of the Ohio Revised Code by not filing adequate ‘findings of facts [sic ] and conclusions of law5 which state adequate reasoning in dismissing petition.”
Appellant’s five assignments of error shall be considered together.
All but one of appellant’s claims of ineffective assistаnce of counsel were raised in his prior petition for post-conviction relief and are, therefore, barred by the doctrine of
res judicata. State v. Perry
(1967),
Appellant’s remaining claim alleges that trial counsel’s performance was deficient because he failed to call the woman as a witness who could provide appellant with an alibi. Appellant supported this allegation with affidavits from Stacy Smith, who asserted that she was in the company of appellant at the time the murder happened and that appellant’s trial cоunsel was aware of this fact. Smith averred that she did not tell appellant that trial counsel was aware of his alibi until February 1996.
The prior version of
“(A) Whether a hearing is or is not held on a petition filed pursuant tosection 2953.21 of the Revised Code, a court may not entertain a * * * a second petition or successive petitions for similar relief on behalf of a petitioner unless both of the following apply:
“(1) Either of the following applies:
“(a) The 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.
“(b) Subsequent to the period prescribed in division (A)(2) ofsection 2953.21 of the Revised Code or to thе filing of an earlier petition, the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner’s situation, and the petition asserts a claim based on that right.
“(2) 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 оffense of which the petitioner was convicted * * *.” (Emphasis added.)
From the language of the statute, it appears that the legislature intended to limit the discretion of the court in entertaining successive petitions for post-conviction relief based on similar grounds to those which satisfied the statutory requirements. In applying those requirements, we conclude that appellant’s petition and supporting affidavits failed to offer evidence to satisfy
There is nothing in appellant’s petition to suggest that an analysis of
Moreover, even if we would find that appellant was “unavoidably prevented” from finding that his trial counsel knew оf the existence of his alibi witness, he failed to satisfy the second prong of the test. That is, he failed to show, by clear and convincing evidеnce, that, but for this error on the part of trial counsel, no reasonable factfinder would have found him guilty. Therefore, the trial court сould not consider appellant’s second petition for post-conviction relief.
*189 Accordingly, the court had neither a duty to hold a hearing on appellant’s petition nor a duty to issue findings of fact and conclusions of law. See, also, State ex rel. Jennings v. Nurre, supra (If the court dismisses a successive petition for post-conviction relief, the issuance of findings of fact and conclusions of law is a matter within the court’s discretion.).
Appellant’s assignments of error are found not well taken. The judgment of the Lucas County Court of Common Pleas is affirmed. Costs of this appeal are assessed to petitioner-appellant.
Judgment affirmed.