State v. ThrasherState v. Thrasher
{¶ 1} Defendant, David Thrasher, appeals from a judgment denying his petition for post conviction relief.
{¶ 2} On May 6, 2004, L.F. and her boyfriend, C.J., left the Fairborn apartment that C.J. shared with Defendant, when
{¶ 3} L.F. accompanied Defendant back to his bedroom, believing that he would give her the money he had promised. Instead, Defendant closed the door and prevented L.F. from leaving. Defendant then fondled L.F.‘s breasts, performed oral sex on her, and vaginally raped her. When L.F. finally left the apartment she drove to her place of employment in Centerville where she reported the assault.
{¶ 4} Defendant was indicted on two counts of rape,
{¶ 5} On June 17, 2005, Defendant filed a petition for post conviction relief pursuant to
{¶ 6} The State filed a motion for summary judgment, arguing that the affidavits submitted in support of Defendant‘s post conviction petition were not credible, and that defense counsel‘s decision not to use the information provided by Defendant was a matter of trial strategy. On April 25, 2006, the trial court overruled Defendant‘s petition without a hearing and granted the State‘s motion for summary judgment. The court found that the affidavits Defendant submitted in support of the post conviction petition were not credible, that the information Defendant wanted counsel to use at trial was likely not admissible, that counsel‘s decision not to pursue it was a matter of sound trial strategy, and that the information would not have changed the result of the
{¶ 7} Defendant timely appealed to this court from the trial court‘s decision overruling his petition for post conviction relief.
FIRST ASSIGNMENT OF ERROR
{¶ 8} “THE COURT ERRED IN DENYING THE APPELLANT‘S PETITION FOR POST CONVICTION RELIEF WITHOUT A HEARING.”
{¶ 9} Defendant claims that there was such a denial or infringement of his constitutional rights because of ineffective assistance of counsel as to render his judgment of conviction void or voidable.
{¶ 10} Counsel‘s performance will not be deemed ineffective unless and until counsel‘s performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel‘s performance. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. To show that a defendant has been prejudiced by counsel‘s deficient performance, the defendant must demonstrate that were it not for counsel‘s errors, the result of the trial would have been different. Id., State v. Bradley (1989), 42 Ohio St.3d 136.
{¶ 11} Pursuant to
{¶ 12} In reviewing petitions for post-conviction relief, a trial court may, in the exercise of its sound discretion, weigh the credibility of affidavits submitted in support of the petition to determine whether to accept the affidavit as true statements of fact. State v. Calhoun, 86 Ohio St.3d 279, 1999-Ohio-102; State v. Coleman (July 29, 2005), Clark App. Nos. 04CA43 and 44, 2005-Ohio-3874. In assessing the credibility of affidavits, the trial court should consider all relevant factors, including:
{¶ 13} “(1) whether the judge reviewing the post-conviction relief petition also presided at the trial, (2) whether multiple affidavits contain nearly identical language, or otherwise appear to have been drafted by the same person, (3) whether the affidavits contain or rely on hearsay, (4) whether
{¶ 14} One or more of the Calhoun factors, to the extent that any of them apply, may be sufficient to justify a conclusion that an affidavit asserting information outside the record lacks credibility. Id.
{¶ 15} The trial court‘s decision dismissing Defendant‘s post-conviction petition without a hearing was, in effect, a summary judgment for the State authorized by
{¶ 16} As grounds for his ineffective assistance of counsel claim, Defendant contended that prior to trial he had told his trial attorney that the victim, L.F., and her boyfriend, C.J., engaged in prolonged sexual activity the night before the alleged rape, activity that was induced or assisted by C.J.‘s ingestion of crystal meth and Viagra. Defendant‘s petition was supported by his own affidavit so stating. He also submitted the affidavits of his ex-wife, Heidi Thrasher, and his girlfriend, Carrie Shoneweiler, both of whom averred that they were present when Defendant imparted the information about the victim‘s sexual activity the night before to his trial attorney.
{¶ 17} The record reflects that Defendant‘s attorney did not cross-examine either L.F. or C.J. about their alleged sexual activity when they testified at trial. That failure was prejudicial, Defendant argues, because there was no evidence corroborating L.F.‘s testimony that she had been forcibly raped by Defendant, except the testimony of a nurse who examined L.F. at a hospital within an hour or two after the alleged rape occurred. When asked whether she observed any external injuries that L.F. may have suffered in the course of the alleged rape, the nurse testified:
{¶ 18} “On her right back there was a reddened area that
{¶ 19} Defendant argues that because these injuries could have as well resulted from the prolonged sexual activity in which L.F. and C.J. allegedly engaged the night before, that his trial attorney was ineffective for failing to bring that matter out in his cross-examination of those witnesses. The jury‘s rejection of the probative value of that evidence as corroborative of the criminal conduct alleged would benefit Defendant.
{¶ 20} In dismissing Defendant‘s petition without a hearing and granting the State‘s motion for summary judgment, the trial court held that the affidavits submitted in support of the petition lacked credibility when examined in light of the Calhoun factors. On this record, we find that the trial court abused its discretion, as that term is defined by law. State v. Adams (1980), 62 Ohio St.2d 151.
{¶ 21} In Calhoun, the petition was filed by a defendant who had entered a negotiated guilty plea to charges of attempted aggravated murder, rape, and aggravated burglary. His involvement in the criminal conduct concerned was conclusively shown by D.N.A. test results. The
{¶ 22} The trial court in Calhoun denied the petition without a hearing. The court of appeals reversed, holding that affidavits of the defendant and his mother that were submitted in support of a hearing mandated a hearing. The Supreme Court disagreed, holding that the trial court could reasonably reject or disbelieve the affidavits.
{¶ 23} The Supreme Court noted that the trial court judge that denied the petition in Calhoun had presided at the defendant‘s change of plea hearing “and was in the best position to observe the defendant and his attorney and therefore assess the credibility of the affidavits.” Id. P. 287. Further, the affidavits of the defendant and his mother were “based on out-of-court statements allegedly made by defendant‘s trial counsel. Therefore, they contain and rely
{¶ 24} In the present case, the affidavits were submitted by Defendant, his ex-wife, Heidi Thrasher, and his girlfriend, Carrie Shonkwiler. The trial judge reviewing the post conviction petition noted that he had presided over Defendant‘s trial and heard all three affiants testify at trial. Two of the three affidavits, Defendant‘s and Heidi Thrasher‘s, appear to have been drafted by the same person, and all three contain similar allegations that Defendant told his attorney that on the night before this rape occurred L.F. and C.J. had used drugs and engaged in sex all night long. The court found that each of the three affidavits relies on or contains hearsay in the form of out-of-court statements made by Defendant or C.J., which the affiant repeats.
{¶ 25} We cannot disagree with the trial court‘s finding that two of the three affidavits, Defendant‘s and his ex-wife‘s, appear to have been drafted or prepared by the same person, or that all three affiants are persons who are interested in the success of Defendant‘s petition. However, the facts of this case are far less compelling than those of Calhoun in respect to the affiants’ lack of credibility.
{¶ 26} First, though the trial judge also had presided at Defendant‘s trial, the conviction at issue resulted not from a guilty plea, as it did in Calhoun, but from a trial at which Defendant disputed his guilt.
{¶ 27} Second, nothing in the affidavits contradicts evidence to which the affiants testified at trial. All three testified, but none was asked about the new matter contained in the affidavits. Their credibility is not diminished because they did not volunteer that information at trial.
{¶ 28} Third, unlike the D.N.A. evidence in Calhoun, the
{¶ 29} Fourth, unlike in Calhoun, there was no affidavit from Defendant‘s trial attorney explaining why, if he was told of L.F.‘s sexual activity the night before, the attorney made no effort to exploit that fact to Defendant‘s benefit. The trial court notes that the evidence may have been inadmissible pursuant to
{¶ 30} Fifth, and finally, the affidavits do not rely on hearsay. They were offered to prove what Defendant told his attorney. Defendant is competent to testify concerning his own out-of-court statement. The other two affiants are competent to testify to the operative fact that they heard it said, which is what their affidavits relate. See Weissenberger‘s Ohio Evidence Treatise (2006 Ed.), § 801.8. Their testimony would be hearsay only if offered to prove that L.F. and C.J. engaged in sexual activity the night before the alleged rape, but that is not the purpose for which their evidence was offered.
{¶ 31} We believe that Calhoun stands for the proposition that a trial court is not required to credit affidavits in support of an
{¶ 32} Calhoun is concerned with manufactured grounds for relief involving propositions which the record shows are lacking in foundation. The court is not then required to proceed beyond the face of the affidavits offered in support of the grounds for relief alleged, and may reject the affidavits and dismiss the petition. However, Calhoun does not authorize that result because the court intuits that the affiants are not worthy of belief. Instead, the court must proceed to determine whether substantive grounds for relief are objectively shown, and if they are to hold a hearing.
{¶ 33} The assignment of error is sustained. The judgment from which this appeal was taken will be reversed, and the case remanded for further proceedings on Defendant‘s petition.
BROGAN, J. And DONOVAN, J., concur.