State v. SidibehState v. Sidibeh
Rendered on June 4, 2013
Ron O‘Brien, Prosecuting Attorney, and Laura R. Swisher, for appellee.
Timothy Young, Ohio Public Defender, and Dennis Pusateri, for appellant.
APPEAL from the Franklin County Court of Common Pleas
BRYANT, J.
{¶ 1} Defendant-appellant, Hassan Sidibeh, appeals from a judgment of the Franklin County Court of Common Pleas denying his petition for postconviction relief. Defendant assigns a single error:
THE TRIAL COURT ERRED BY DISMISSING APPELLANT‘S PETITION FOR POSTCONVICTION RELIEF WITHOUT CONDUCTING A HEARING TO RESOLVE COMPETING QUESTIONS OF FACT.
Because the trial court properly concluded defendant failed to provide newly discovered evidence to support his filing a petition for postconviction relief outside the time constraints of
{¶ 2} Defendant was indicted for aggravated burglary, four counts of aggravated robbery, four counts of kidnapping, and eight counts of robbery, each with a firearm specification, arising out of an October 2008 home invasion. State v. Sidibeh, 192 Ohio App.3d 256, 2011-Ohio-712 (10th Dist.). Defendant, a juvenile when he was indicted, was bound over to the common pleas court to be tried as an adult; pursuant to jury trial, defendant was found guilty on all charges and specifications. The trial court sentenced defendant to 18 years of imprisonment.
{¶ 3} On April 12, 2010, defendant appealed his convictions, assigning nine errors, the eighth of which asserted defendant did not receive effective assistance of counsel. In its April 2011 decision in Sidebeh, this court overruled each of defendant‘s assignments of error, except the contentions in defendant‘s seventh assignment of error regarding a sentencing issue under
{¶ 4} Defendant filed a petition for postconviction relief on October 5, 2011. Defendant attached to the motion an affidavit from a private investigator, as well as affidavits from family members and friends. The trial court initially concluded the petition was untimely, noting defendant failed to file the petition no later than 180 days after May 26, 2010, the date on which the trial transcript was filed in the court of appeals in defendant‘s direct appeal of his convictions. See
{¶ 5} The trial court decided the only possible exception was a delayed filing due to newly discovered evidence that defendant was unavoidably prevented from discovering within the 180-day time period. After examining the evidence defendant submitted to support his petition, the trial court concluded defendant was aware of and had access to all of the evidence within the 180 days specified for a timely petition. Accordingly, the trial court denied defendant‘s petition without a hearing.
II. Petition for Postconviction Relief – General Requirements
{¶ 7} “[A] trial court‘s decision granting or denying a postconviction petition filed pursuant to
A. Timeliness under R.C. 2953.21(A)(2)
{¶ 8} A petition for postconviction relief is a collateral civil attack on a criminal judgment, not an appeal of the judgment. State v. Steffen, 70 Ohio St.3d 399, 410 (1994). “It is a means to reach constitutional issues which would otherwise be impossible to reach because the evidence supporting those issues is not contained in the record.” State v. Murphy, 10th Dist. No. 00AP-233 (Dec. 26, 2000), discretionary appeal not allowed, 92 Ohio St.3d 1441 (2001).
{¶ 9} Effective September 21, 1995,
{¶ 10} Defendant directly appealed from his judgment of convictions, and the transcript was filed in the court of appeals on May 26, 2010. Defendant then had 180 days
{¶ 11} Pursuant to
B. Res Judicata
{¶ 12} Another significant restriction on Ohio‘s statutory procedure for postconviction relief is the doctrine of res judicata. The doctrine requires a defendant to support the error claimed in the petition with evidence outside the record created from the direct criminal proceedings. “Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment or conviction, or on an appeal from that judgment.” (Emphasis deleted.) State v. Cole, 2 Ohio St.3d 112, 113 (1982), quoting Perry at paragraph nine of the syllabus. “Res judicata also implicitly bars a petitioner from ‘re-packaging’ evidence or issues which either were, or could have been, raised in the context of the petitioner‘s trial or direct appeal.” Hessler at ¶ 37.
C. Hearing
{¶ 13} Lastly, a defendant is not automatically entitled to an evidentiary hearing on a petition. State v. Jackson, 64 Ohio St.2d 107, 110-13 (1980). To warrant an evidentiary hearing, the defendant bears the initial burden of providing evidence to demonstrate a cognizable claim of constitutional error.
III. Defendant‘s Petition – Properly Denied
{¶ 14} Defendant contends counsel‘s failure to investigate, to present an alibi, and to present evidence that one of the participants in the home invasion is a look-alike for defendant amounts to ineffective assistance of counsel. Defendant asserts that had counsel investigated the issue and presented such testimony, the testimony would have supported defendant‘s alibi and resulted in his acquittal.
{¶ 15} To secure a hearing on his claim for postconviction relief based on the ineffective assistance of trial counsel, defendant had the initial burden of submitting evidentiary documents that together contain sufficient operative facts which, if believed, would establish (1) counsel substantially violated at least one of the attorney‘s essential duties to his or her client, and (2) defendant was prejudiced as a result. Cole at 114; Calhoun at 289 (noting a postconviction relief petitioner has the burden of proving counsel‘s ineffectiveness, since in Ohio a properly licensed attorney is presumed to be competent). “Judicial scrutiny of counsel‘s performance must be highly deferential * * * [and] a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.” Strickland v. Washington, 466 U.S. 668, 689 (1984); State v. Bradley, 42 Ohio St.3d 136, 149 (1989). Defendant‘s proceedings raise a number of issues that undermine the postconviction relief he seeks.
A. Timeliness Under R.C. 2953.21(A)(2)
{¶ 16} The first issue presented in defendant‘s appeal is whether the time for defendant to file a petition for postconviction relief began to run when the transcript was filed in his initial, direct appeal of his convictions and sentence or in relation to the more recent sentence the trial court imposed on remand.
{¶ 17} While
{¶ 18} Accordingly, under the circumstances of this case, the timeliness of
B. Unavoidably Prevented from Discovering Pertinent Evidence
{¶ 19} Because defendant did not file within the 180 days specified in
{¶ 20} To support his contention, defendant filed a number of affidavits with his petition for postconviction relief. None, however, supports his claim that he was unavoidably prevented from discovering the evidence. The first is the affidavit of Jenifer Ruffing, a private investigator that defendant‘s attorney hired. Ruffing‘s affidavit states the trial transcript revealed defendant‘s co-defendants, Kasey Brown and Robert Vann, testified a young man named Naron directed them to target the home subject of the invasion. According to Ruffing‘s affidavit, “Mr. Vann indicated that there was a physical resemblance between ‘Naron’ and Mr. Sidibeh.” (Affidavit, at ¶ 3.) The affidavit states that she procured photographs of Naron, compared them to defendant, and interviewed Naron Williams, who told her defendant was not with Brown and Vann on the night of the invasion. Williams’ sister confirmed that information.
{¶ 22} Defendant also submitted his own affidavit to support his petition and in it stated he was at his family‘s home at the time of the invasion. He avers that he “did not testify that‘s where [he] was because [his] attorney never asked [him], nor did he tell [him] that was a matter of importance.” (Sidibeh affidavit, at ¶ 2.) Even if that statement be true, it does not explain why defendant could not have presented the same information within the 180-day timeframe the statute proscribes.
{¶ 23} Similarly, at or around the time of trial, defendant knew of the information in the remaining affidavits submitted from members of defendant‘s family or friends. Because all the affiants were well-known to defendant, defendant could have submitted their affidavits in a timely fashion. Indeed, nothing in the affidavits suggests anything about the affiants or the information contained in the affidavits that unavoidably prevented defendant from discovering the evidence within 180 days of filing the transcript in his direct appeal. Accordingly, defendant failed to demonstrate that his petition falls under the time exception set forth in
C. Res Judicata Bars Some Issues
{¶ 24} The second issue adverse to defendant‘s petition is res judicata. To the extent defendant claims ineffective assistance of counsel based on matters contained within the record, res judicata bars our considering those matters in a postconviction relief petition. As the trial court noted, defendant was allowed to present alibi evidence, and to the extent defendant‘s petition premises its ineffective assistance argument in part on matters in the record, res judicata bars those arguments. Although his petition also contests the extent to which counsel presented the alibi defense, and includes information not presented at trial, defendant had or could have had access to, and was aware of or could have known of, the affidavit evidence at or around the time of trial.
{¶ 26} Unlike either of those cases, defendant had equal access to Naron Williams and the information he may have had. Because Williams was mentioned during the trial, defendant had the independent means to investigate whether Williams could offer any testimony helpful to defendant, and defendant could have submitted that evidence in a timely petition. Defendant did not. Accordingly, his contentions concerning the state‘s inaction as the cause for his delay are unpersuasive.
{¶ 27} In the end, defendant presented nothing suggesting an exception to the 180-day time limit set forth in
IV. Disposition
{¶ 28} Having overruled defendant‘s single assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN and McCORMAC, JJ., concur.
McCORMAC, retired of the Tenth Appellate District, assigned to active duty under the authority of the Ohio Constitution, Article IV, Section 6(C).