State v. WestState v. West
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-468578
David L. Doughten
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Matthew E. Meyer
Assistant County Prosecutor
Justice Center - 8th Floor
1200 Ontario street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Appellant, Timothy West (“West“), appeals the trial court‘s denial of his petition for postconviction relief. West argues that the trial court erred in denying his petition without an evidentiary hearing, that his trial counsel was ineffective, and the State withheld exculpatory materials under Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, thus entitling him to a new trial. After reviewing the pertinent law and facts, we disagree and affirm the trial court‘s denial of West‘s petition for postconviction relief.
Procedural History
{¶ 2} On July 22, 2005, a Cuyahoga County Grand Jury indicted West on two counts of aggravated arson. In Count 1, West was charged with a first degree felony, in violation of
{¶ 3} On November 1, 2006, a jury trial commenced.
{¶ 4} On November 8, 2006, the jury found West not guilty on both counts in the indictment, but guilty of the lesser included offense of arson, which was a fourth degree felony in Count 1, and a third degree felony in Count 2.
{¶ 6} On January 3, 2007, West appealed his conviction and sentence.
{¶ 7} On September 14, 2007, during the pendency of his appeal, West filed his petition for postconviction relief, styled as a petition to vacate or set aside sentence pursuant to
{¶ 8} On May 27, 2008, this court affirmed West‘s convictions and sentence in State v. West, Cuyahoga App. No. 89229, 2008-Ohio-2190 (”West I“).
{¶ 9} On June 19, 2008, West appealed his conviction to the Ohio Supreme Court. On October 1, 2008, the Ohio Supreme Court declined to accept review of West‘s convictions and sentence. See State v. West, 119 Ohio St.3d 1476, 2008-Ohio-4911, 894 N.E.2d 334.
{¶ 10} On January 28, 2009, after West‘s direct appeal was concluded and the Supreme Court declined to accept review, the issues surrounding West‘s petition for postconviction relief were fully briefed, and the trial court issued a four-page findings of fact and conclusions of law denying West‘s petition for postconviction relief under
{¶ 12} West‘s first assignment of error states:
“The trial judge erred in failing to grant the appellant an evidentiary hearing as is required by
R.C. 2953.21(E) .”
{¶ 13} In reviewing an appeal of postconviction relief proceedings, this court applies an abuse of discretion standard in determining whether the trial court erred in denying the petitioner‘s motion without a hearing. State v. Watson (1998), 126 Ohio App.3d 316, 324, 710 N.E.2d 340. An abuse of discretion implies that the court‘s decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.
{¶ 14} A petitioner seeking postconviction relief is not automatically entitled to an evidentiary hearing on the petition. State v. Calhoun, 86 Ohio St.3d 279, 282, 1999-Ohio-102, 714 N.E.2d 905. In order to obtain such a hearing, the petitioner must show that there are substantive grounds for relief that would warrant a hearing based upon the petition, supporting affidavits, and files and records in the case. See
{¶ 15} Substantive grounds for relief exist where there was such a denial or infringement of the petitioner‘s constitutional rights so as to render the judgment void or voidable.
{¶ 17} West argues in the affidavit attached to his postconviction petition that certain utility bills and cell phone records prove his innocence. West admits, however, that these were available to his trial counsel, but contends they were never used. This amounts to a strategic argument that dovetails with West‘s ineffective assistance of counsel claim in his second assignment of error. Even if true, the information contained in the affidavit does not rise to the level of demonstrating a constitutional violation, but instead raises only a tactical question. Calhoun at 284. Here, as in Calhoun, the actual truth or falsity of the affidavit is inconsequential where the constitutional deprivation alleged is insufficient and instead amounts to a tactical question under an ineffective assistance of counsel argument. Id. As such, West has not demonstrated that he was entitled to a hearing on his petition for postconviction relief. We agree with the trial court‘s findings of fact and conclusions of law, which stated:
“As for defendant‘s * * * claim, that he is ‘actually innocent of the offenses charged,’ such assertion is as common as it is irrelevant to the issues before the court. Every defendant who takes his indictment to trial does so upon a claim of innocence, coupled with the legal presumption of innocence. It is not a defendant‘s innocence or guilt that is established at trial, but rather whether sufficient evidence of guilt has been presented to convince a jury beyond a reasonable doubt. While our criminal justice system is not perfect, it takes more than a mere assertion of innocence to render a jury verdict void or voidable as a matter of law. Id. at ¶7.
“* * *
“Similarly, in the case sub judice, this Court finds that none of the examples set forth by defendant constitute anything more than toxic tactical decisions by trial counsel as evidence that conceivable might --- or might not — have had an impact on the jury‘s verdict.” Id. at ¶8. (Emphasis in original.)
{¶ 18} In Ohio, contrary to West‘s assertion, postconviction relief petitioners are not entitled to a hearing “[u]nless the petition and the files and records of the case” show the petitioner is entitled to relief.
{¶ 19} Here, the trial court reviewed the record and not only determined that West was not entitled to relief, but the court, at West‘s request, issued a four-page statement of findings of fact and conclusions of law supporting its decision to deny him relief. In our review of the record, including the trial
{¶ 20} The trial court‘s reasons for denying West a hearing were manifest in its findings of fact and conclusions of law denying him relief, and evidenced the fact that the trial court considered the entire record. Those reasons cited by the trial court included West‘s mere assertion that he was innocent, and his inference, without any specific explanation, that the State‘s witnesses received “favorable treatment” that was never fully revealed by the State. Such assertions by themselves do not entitle a postconviction relief petitioner to a hearing under
{¶ 21} A review of the record indicates that State‘s witness Dennis Dvorak (“Dvorak“) was not charged in this matter. It is impossible to speculate, as West does in his brief, the type of “treatment” Dvorak received from the State, as he was never charged. Phillip Lowe, West‘s codefendant in this case, received a three-year term of incarceration for his participation in the arson, while West received only six months of incarceration. Based on the record, therefore, West was treated more “favorably” by the court than Lowe. As the trial court determined, West‘s argument on this point lacks specific, operable facts that would entitle him to relief.
{¶ 23} West‘s second and third assignments of error state:
“The appellant was denied effective assistance of counsel at trial.”
“The state failed to fully disclose the extend [sic] of the promises made to its witnesses in exchange for the testimony of those witnesses.”
{¶ 24} These arguments are restatements of assignments of error four and five from West I, supra, surrounding ineffective assistance of counsel and the State‘s alleged failure to comply with Brady, supra, in turning over
{¶ 25} West has failed to demonstrate, as required by
{¶ 26} West‘s second and third assignments of error are overruled.
Judgment affirmed.
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 issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
MARY EILEEN KILBANE, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., CONCURS;
ANN DYKE, J., CONCURS IN JUDGMENT ONLY