STATE OF OHIO v. CHRISTOPHER TUCKER
No. 95556
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
August 18, 2011
2011-Ohio-4092
Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-437731
JUDGMENT: AFFIRMED; REMANDED
BEFORE: Celebrezze, J., Stewart, P.J., and Sweeney, J.
RELEASED AND JOURNALIZED: August 18, 2011
Robert Tobik
Cuyahoga County Public Defender
BY: Erika B. Cunliffe
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Katherine Mullin
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Appellant, Christopher Tucker, seeks a new trial or, at the very least, a hearing on his motions for postconviction relief and new trial. After a thorough review of the record and law, we affirm the decision of the trial court.
{¶ 2} The history of this case has previously been recited by this court in State v. Tucker, Cuyahoga App. No. 83419, 2004-Ohio-5380 (“Tucker I“), and State v. Tucker, Cuyahoga App. No. 90799, 2008-Ohio-5746 (“Tucker III“).
{¶ 3} After his first unsuccessful appeal in Tucker I, appellant filed a postconviction relief petition on April 24, 2004. He argued that his counsel was ineffective, that witness Nikia Beal had told people that she could not identify appellant as Austin‘s killer, and that the trial judge had a bias against him.
{¶ 4} Appellant also filed a motion for a new trial on August 2, 2004. He argued that a new trial was warranted based on newly discovered evidence, namely, the recantation of eyewitness Joseph Fussell. Appellant attached an affidavit purportedly from Fussell stating, “what I said I saw last year in May at Whatley‘s Bar is not what I really saw. I was mistaken it was not Christopher Tucker.”
{¶ 5} The trial judge granted appellant a hearing regarding Fussell‘s recantation only, but was then replaced due to a lost election. The state filed a motion for reconsideration with the successor judge, which was granted on March 31, 2006.1 The trial court found that the postconviction relief petition was untimely and that the recantation of one witness when two witnesses
{¶ 6} On June 2, 2006, appellant sought leave to file a delayed appeal, arguing that he did not receive service of the trial court‘s journal entry denying his motions until April 18, 2006. This court, without opinion, denied appellant‘s request and dismissed his appeal. State v. Tucker (July 6, 2006), Cuyahoga App. No. 88254 (“Tucker II“).
{¶ 7} Appellant then filed a new petition for postconviction relief and a motion for new trial on August 2, 2007. He brought forth a new affidavit from D.R.2 who claimed appellant was inside the bar at the time of the shooting. These motions were denied without hearing. In Tucker III, appellant appealed the denial of these motions and attempted to argue that the trial court‘s denial of his first set of motions was improper. This court agreed that the trial court should have held a hearing on the second motions and ordered that such a hearing take place, but also held that appellant‘s attempt to appeal the denial of his first motions was barred by res judicata.
{¶ 8} The hearing mandated by this court in 2008 has not yet occurred. Shortly before the hearing was set to commence, appellant filed an appeal
Law and Analysis
Timeliness of the Appeal
{¶ 9} The state argues that the instant appeal was filed over 1500 days out of rule. Generally, a party has 30 days from the date of a final, appealable order to perfect an appeal.
{¶ 10} Here, the trial court did not direct the clerk to serve notice upon the parties. The clerk also failed to note the date of any notice sent. Accordingly, because service was not perfected in accordance with
{¶ 11} The state argues that res judicata bars the instant appeal because appellant filed a motion for a delayed appeal, which this court denied. However, appellant had no need to file for a delayed appeal, and we decline to give our prior determination denying leave to appeal the effect of precluding all litigation from the trial court‘s order.
{¶ 12} The state also argues that appellant received actual notice as indicated by his June 6, 2006 motion for leave to file a delayed appeal. The memorandum appellant attached to this motion indicates that he “did not receive [the judgment entry] until April 18, 2006 at least 20 days after the ruling.” Even though appellant acknowledges that he received the journal entry, the Third District has indicated that actual notice does not matter when the clerk fails to perfect service pursuant to
{¶ 14} While the state has affirmatively shown that appellant received a copy of the journal entry before 30 days from the date of the decision from which he is now appealing, the law in this district holds that actual notice is insufficient given the clear dictates of
Denial of Postconviction Relief Petition
{¶ 15} Appellant assigns only one error, but it addresses the dismissal of two motions, a postconviction relief petition and a motion for a new trial. Appellant asserts that “[t]he trial court violated [his] state and federal Constitutional rights when it summarily dismissed” these motions.
{¶ 16} According to the postconviction relief statute, a criminal defendant seeking to challenge his conviction through a petition for postconviction relief is not automatically entitled to a hearing. State v. Cole (1982), 2 Ohio St.3d 112, 443 N.E.2d 169. Before granting an evidentiary hearing on the petition, the trial court shall determine whether there are substantive grounds for relief (
{¶ 17} In the interest of judicial economy and efficiency, it is not unreasonable to require the defendant to show in his petition for postconviction relief that such errors resulted in prejudice before a hearing is scheduled. See State v. Jackson (1980), 64 Ohio St.2d 107, 112, 413 N.E.2d 819. Therefore, before a hearing is granted, “the petitioner bears the initial burden to submit evidentiary documents containing sufficient operative facts * * *.” (Emphasis added.) Id. at syllabus. Where a petitioner fails to carry this burden, the trial court does not abuse its discretion in denying the petition without a hearing.
{¶ 18} The Ohio Supreme Court, in State v. Calhoun, 86 Ohio St.3d 279, 1999-Ohio-102, 714 N.E.2d 905, stated: “[A] trial court should give due deference to affidavits sworn to under oath and filed in support of the petition, but may, in the sound exercise of discretion, judge their credibility in determining whether to accept the affidavits as true statements of fact. To hold otherwise would require a hearing for every postconviction relief petition.” Id. at 284. “[I]f we would allow any open-ended allegation or conclusory statement concerning competency of counsel without a further showing of prejudice to the defendant to automatically mandate a hearing,
{¶ 19} Appellant‘s petition contained three bases for relief. First, it alleged that a witness at trial, Nikia Beal, had told others that she could not identify appellant as Austin‘s killer. However, appellant attached no affidavits from Beal or others who allegedly heard Beal state this. This claim is not sufficient to necessitate a hearing because it is wholly unsupported.4
{¶ 20} Appellant also raises issues of ineffective assistance of counsel. He argues that counsel did not call alibi witnesses that appellant requested. However, appellant previously raised the same issue of ineffective assistance in Tucker I. Therefore, this claim is barred by res judicata. State v. Sherman, Cuyahoga App. No. 95716, 2011-Ohio-1810, ¶5. Even if it were not, appellant‘s attorney called two alibi witnesses who testified that appellant was with them inside the bar at the time of the shooting. No prejudice, a required element for an ineffective assistance claim, can be shown here. State v. Hamilton, Cuyahoga App. No. 86520, 2006-Ohio-1949, ¶50. Therefore, the trial court was not required to hold a hearing on this aspect of appellant‘s petition in order to overrule it.
{¶ 21} Finally, appellant argues that the trial judge was biased against him. He states that during a conversation in chambers between the judge, defense counsel, and the state, the judge said, “‘[h]ow will the appeal courts know if I was wrong in this decision.‘” Appellant argues that “[d]iscussion about Appeal Court procedures in the middle of trial shows prejudice toward defendant and shows his guilt was in the eye of the courts before verdict [sic] was even given.” This evidence, the only evidence attached to appellant‘s petition, does not even begin to establish an apparent bias.5
{¶ 22} Appellant‘s petition for postconviction relief was unsupported by any affidavit, provided implausible arguments, and could have been denied without a hearing. It was not an abuse of discretion for the trial court to so rule.
{¶ 23} The state also argues that appellant‘s petition was untimely given that it was filed 10 days after the 180-day period established in
{¶ 24} Appellant also failed to demonstrate that a reasonable fact finder would have found him not guilty because he failed to attach any supporting evidence that Beal testified untruthfully. Therefore, appellant‘s postconviction relief petition was untimely because he failed to satisfy the second condition in
Denial of Motion for New Trial
{¶ 25} Appellant also argues that the denial of his motion for a new trial was improper without the benefit of a hearing. A motion for a new trial is governed by
{¶ 26} A trial court may grant a motion for a new trial based on newly discovered evidence when such evidence is material and “could not with
{¶ 27} The first prong of the Petro test requires appellant to show that the newly discovered evidence gives rise to a strong probability that he would be acquitted. Appellant advances Fussell‘s affidavit to support this position. This would provide sufficient grounds to demonstrate a strong probability of a different outcome but for the trial testimony of Beal. There were two eye witnesses who testified that appellant shot and killed Austin.6 Prior to the court ruling on his motion, appellant provided no evidence, other than his own unsworn statement, that Beal recanted. Yet, he argued repeatedly that both witnesses recanted their testimony. Because, at the time the trial court made its determination, appellant had provided no evidence that Beal
{¶ 28} The trial court also found this motion was untimely.
{¶ 29} Here appellant did not seek leave to file his motion for a new trial. He otherwise failed to satisfy these requirements in his motion, and the trial court could properly determine that the motion was untimely. While the recantation of a witness may serve as the basis for a motion for a new trial based on newly discovered evidence, appellant failed to seek leave to file such a motion.
Conclusion
{¶ 30} The trial court did not abuse its discretion in denying appellant‘s petition for postconviction relief and motion for new trial without a hearing where appellant failed to support those motions with adequate evidence necessitating a hearing. The trial court should now, after many years, conduct the hearing ordered by this court in Tucker III.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
MELODY J. STEWART, P.J., and JAMES J. SWEENEY, J., CONCUR