Stаte of Ohio, Plaintiff-Appellee, v. Ella B. Vinson, Defendant-Appellant.
No. 20AP-356
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
March 18, 2021
[Cite as State v. Vinson, 2021-Ohio-836.]
SADLER, J.
(C.P.C. No. 07CR-6859) (ACCELERATED CALENDAR)
Rendered on March 18, 2021
On brief: Gary Tyack, Prosecuting Attorney, and Kimberly M. Bond, for appellee.
On brief: Ella B. Vinson, pro se. Argued: Ella B. Vinson.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Defendant-appellant, Ella B. Vinson, appeals from a judgment of the Franklin County Court of Common Pleas, denying her petition for postconviction relief. For the reasons that follow we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On September 11, 2007, appellant was involved in an altercation with the victim in front of appellant‘s residence. In the course of the altercation, appellant stabbed and/or slashed the victim‘s arm with a paring knife. State v. Vinson, 10th Dist. No. 08AP-381, 2008-Ohio-6430. Appellant was taken into custody and the apartment secured until police could obtain a search warrant. Appellant was arrested on September 11, 2007 and
{¶ 3} The subsequent procedural history of the case is set forth in State v. Vinson, 10th Dist. No. 09AP-163, 2009-Ohio-3751:
On September 20, 2007, appellant was indicted on one count of felonious assault, in violation of
R.C. 2903.11 . Appellant waived her right to a jury trial, and the case was tried to the benсh. On February 29, 2008, the trial court found appellant guilty of the charge of felonious assault.Represented by new counsel, appellant appealed the judgment, arguing that her conviction was against the manifest weight of the evidence, and that she received ineffective assistance of counsel. In State v. Vinson, 10th Dist. No. 08AP-381, 2008-Ohio-6430, this court overruled appellant‘s assignments of error and affirmed the judgment of the trial court.
On December 15, 2008, appellant filed a petition, pursuant to
R.C. 2953.21 , to vacate or set aside her judgment of conviction or sentence. The trial court denied appellant‘s petition by entry filed January 16, 2009.
Id. at ¶ 2-4.1
{¶ 4} Appellant appealed to this court from the December 15, 2008 judgment denying her petition for postconviction relief. Id. аt ¶ 5. On July 30, 2009, this court affirmed the trial court. Id. at ¶ 15, discretionary appeal not allowed, State v. Vinson, 123 Ohio St.3d 1497, 2009-Ohio-6015.
{¶ 5} On June 12, 2020, appellant filed her second petition for postconviction relief and on June 15, 2020, appellant filed a substantially similar petition with additional exhibits. Appellant‘s primary claim for postconviction relief is an alleged error by her trial counsel in failing to file a motion to suppress evidence recovered by pоlice in the search of her residence.
{¶ 6} Appellee filed a combined memorandum in opposition to the petition and a motion to dismiss the petition on June 17, 2020. On June 22, 2020, the trial court issued
All of Ms. Vinson‘s claims have been considered and rejected on direсt appeal, or under her first Petition for Post-Conviction relief (which received full appellate review.) By submitting repetitive papers and re-packaging arguments already made, or that could have been made, Ms. Vinson gains no additional rights. Indeed, her repetitive filings are now simply frivolous.
(June 22, 2020 Journal Entry at 2.)
{¶ 7} Appellant timely appealed to this court from the June 22, 2020 judgment.
II. ASSIGNMENT OF ERROR
{¶ 8} Appellant assigns the following as trial court error:
DID THE TRIER OF FACT ERR WHEN HE ALLOWED THE PROSECUTION TO SUBMIT APPELLANTS’ [sic] SEIZED PROPERTY AS EVIDENCE IN THE STATES [siс] CASE WITHOUT A SEARCH WARRANT AND AFFIDAVIT OF RECORD?
III. STANDARD OF REVIEW
{¶ 9} Ordinarily, the “‘standard for reviewing a trial court‘s decision to dismiss a petition for postconviction relief, without an evidentiary hearing, involves a mixed question of law and fact.‘” State v. Kane, 10th Dist. No. 16AP-781, 2017-Ohio-7838, ¶ 9, quoting State v. Lacking, 10th Dist. No. 14AP-691, 2015-Ohio-1715, ¶ 8, citing State v. Tucker, 10th Dist. No. 12AP-158, 2012-Ohio-3477, ¶ 9. “This court must apply a manifest weight standard in reviewing a trial court‘s findings on factual issues underlying the substantive grounds for relief, but we must review the trial court‘s legal conclusions de novo.” Kane at ¶ 9, citing Lacking at ¶ 9. However,
IV. LEGAL ANALYSIS
{¶ 10} In her sole assignment of error, appellant contends that the trial court erred in denying her petition for postconviction relief because, during appellant‘s prosecution, the trial court erroneously permitted the prosecution to admit evidence obtained as а result of search of her residence pursuant to a defective search warrant. Appellant summarized her claim as follows:
The record shows I was deprived of counsel (enclosed) at the onset of this case lacking in probable cause. Evidence seized in this illegal search was used in the State‘s case at trial without a valid search warrant and аffidavit of record - because a valid search warrant and affidavit does not exist for this case. Hence till this day, this Error of Law/or use of appellant‘s ill seized property without a valid search warrant and affidavit of record still exists - because probable cause never existed in this case.
(Emphasis sic.) (June 25, 2020 Memo. in Opp. at 2.)2
{¶ 11} Appellant claims that the search warrant issued by a municipаl court judge authorizing the search of her residence was constitutionally infirm because the search warrant was signed and issued by the judge on September 11, 2007, but the search warrant and the search warrant affidavit, evidencing probable cause, were not filed in the municipal court until September 17, 2007. According to appellant, this means that the warrant was issued without probable cause and that the evidence obtained in the search should have been excluded had counsel filed a motion to suppress.
{¶ 12} Appellant has attached copies of the search warrant and search warrant affidavit to her motion for postconviction relief. The search warrant affidavit is signed by a police officer and datеd September 11, 2007; the search warrant is signed by a municipal court judge and dated September 11, 2007. The search warrant and search warrant affidavit bear a date stamp indicating that the documents were filed with the municipal court clerk on September 17, 2007.
{¶ 14}
(A) Whether a hearing is or is not held on a petition filed pursuant to section 2953.21 of the Revised Code, a court may not entertain a * * * second petition or successive petitions for similar relief on behalf of a petitioner unless division (A)(1) or (2) of this section applies:
(1) Both of the following apply:
(a) Either 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) 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 offense of which the petitioner was convicted * * *.
(Emphasis added.)3
{¶ 15} Appellant‘s postconviction petition in this case is subject to the requirements of
{¶ 16} “Th[e] exception in
{¶ 17} Appellant acknowledges that she was arrested at her residence and that her residence was subsequently searched pursuant to the search warrant. Appellant admits that the search warrant and affidavit were both filed in the Franklin County Municipal Court on September 17, 2007. The facts supporting appellant‘s claim that the search
Petitioner asserts that per Statute she was unavoidably prevented from the discovery of facts; denial of all my counsel (3)- the one that “withdrew“, trial and appellate counsel due to collusion in my prosecution without probable cause.
(June 25, 2020 Memo. in Opp. at 1.)
{¶ 18} Appellant claims that she was unavoidably prevented from discovering the alleged defect in the search warrant because of errors by her trial and appellate counsel. There is no merit to appellant‘s claim.
{¶ 19} This court has consistently rejected the contention that a postconviction petitioner is unavoidably prevented from discovery of the facts upon which the petition relies when petitioner cannot not explain why neither they nor their trial counsel could not have discovered those facts in the exercise of reasonable diligence. State v. Howard, 10th Dist. No. 15AP-161, 2016-Ohio-504, ¶ 34, discretionary appeal not allowed, 147 Ohio St.3d 1413, 2016-Ohio-7455, citing State v. Anderson, 10th Dist. No. 12AP-133, 2012-Ohio-4733, ¶ 14; State v. Golden, 10th Dist. No. 09AP-1004, 2010-Ohio-4438, ¶ 13. When a petitioner blames the failure to discover the necessary facts on his trial counsel‘s ineffectiveness, the petitioner essentially concedes that such evidence could have been obtained either by the petitioner or counsel in the exercise of reasonable diligence. Id. at ¶ 33. When a trial court is faced with such a claim, “it [is] impossible for the trial court to consider appellant‘s claim of being ‘unavoidably prevented’ without concurrently considering whether counsel was ineffective.” State v. Waddy, 10th Dist. No. 15AP-397, 2016-Ohio-4911, ¶ 31.
{¶ 20} In Howard, the petitioner claimed that the victim‘s mеdical records would have bolstered his claim that the victim died by suicide, and not at his hands. In petitioner‘s untimely petition for postconviction relief, petitioner blamed his trial counsel for the failure to obtain the medical records within the time required to file a timely petition for postconviction relief. In support of petitioner‘s claim that he was unavoidаbly prevented from discovering the medical record, petitioner produced medical records documenting the victim‘s serious mental health condition and her two prior suicide attempts; the affidavits
{¶ 21} In light of the evidence presented by petitioner, the Howard court held that petitioner had established that he was unavoidably prevented, due to counsel‘s ineffectiveness, from discovering the medical records upon which his petition relied. Id. at ¶ 23.4
{¶ 22} Here, appellant did not allege any facts or produce any evidence in the trial court to support her unsworn assertion that errors by her trial and appellate counsel prevented her from discovering the facts upon which a potentially meritorious motion to suppress could have been filed. Appellant knew at the time of her arrest that a search warrant had issued for her premises. Appellant admits that the facts upon which she now relies in support of her petition were available in the public record of the Franklin County Municipal Court on September 17, 2007. Appellant failed to provide the trial court with an affidavit from any of her former counsel or any other affiant evidencing the fact that a motion to suppress was discussed or considered. Appellant did not even provide her own affidavit in support of the petition.
{¶ 23} Based on the foregoing, we find that appellant has not demonstrated she met the requirements of
{¶ 24} Moreover, even if we were to accept appellant‘s vague and unsworn allegation that she was unavoidably prevented from discovering the alleged defects in the search warrant because of her counsel‘s errors, appellant has failed to produce clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted.
{¶ 26} There is no question that evidence seized pursuant to a search warrant that is not signed by a judge prior to the search is subject to suppression. Harrington at ¶ 7, citing Williams at paragraph one of the syllabus. See also State v. Carpenter, 12th Dist. No. CA2005-11-494, 2007-Ohio-5790. Here, however, appellant‘s argument is not that the warrant was unsigned but that the search warrant documents were not filed with the clerk until days after the warrant was issued.
{¶ 27} Search warrants are issued pursuant to the authority found in
(E)Return of papers to clerk.
The law enforcement officer shall attach to the warrant a copy of the return, inventory, and all other papers in connection therewith and shall file them with the clerk or the judge, if the warrant so requires.5
{¶ 28} The filing requirement in
{¶ 29} Finally, though appellant does not identify the evidence she would have sought to exclude from the bench trial, the record and the search warrant documents filed in the municipal court identify the knife appellant used to stab the victim as the primary piece of physical evidence found in the residence and admitted into evidence. Given appellant‘s defense at trial that she stabbed the victim in self-defense, the exclusion of the knife as evidence in her criminal trial would not have benefitted appellant‘s defense in any meaningful way. State v. Poole, 33 Ohio St.2d 18, 19 (1973) (A claim of self-defense admits the facts claimed by the prosecution and then relies on independent facts or circumstances which the defendant claims exempt him from liability.).
{¶ 30} For the foregoing reasons, we find that appellant has not demonstrated that she met the requirements of
{¶ 31} Because appellаnt‘s petition is a successive petition for postconviction relief, and because appellant failed to produce evidence to support a finding that any of the
{¶ 32} “This court has previously advised that trial courts should dismiss a petition for postconviction relief when jurisdiction is lacking rather than denying the petition on
V. CONCLUSION
{¶ 33} Having overruled appellant‘s sole assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN, P.J., and LUPER SCHUSTER, J., concur.