State v. WynnState v. Wynn
ANTONIO WYNN #657-874, Warren Correctional Institution, Post Office Box 120, Lebanon, Ohio 45036 Defendant-Appellant, pro se
OPINION
HALL, J.,
{¶ 1} Antonio Wynn appeals pro se from the trial court’s denial of his
{¶ 3} The record reflects that a jury convicted Wynn of complicity to commit felony murder. At trial, the State presented evidence that Wynn assisted his friend and co-defendant George Turner in killing Deonta Beans. A video surveillance camera captured the murder, and eyewitnesses identified Turner as the person who shot Beans inside a convenience store. Prior to Wynn’s trial, Turner pled guilty and agreed to testify for the State.
{¶ 4} At Wynn’s trial, Turner testified that he previously had been robbed by Beans. Turner explained that Wynn had agreed to help him get even with Beans. According to Turner, he and Wynn saw Beans inside the convenience store. Turner then drove Wynn to Wynn’s house. Wynn entered his house and retrieved a handgun, which he gave to Turner. The two men then returned to the convenience store where Beans remained inside. Before exiting the car, Wynn picked up a pair of gloves and handed the left glove to Turner, who was left handed, to keep gunshot residue off of his skin. Wynn, who was right handed, put on the right glove. According to Turner, he then racked the gun, placed it in his waistband, and followed Wynn into the store. Once inside, Wynn and Turner approached Beans. Wynn first punched Beans with his gloved hand. As Beans stumbled, Turner held the gun in his gloved left hand and pointed it at Beans’ head. With his other hand, Turner tried to pin Beans’ arms down. At the same time, Wynn punched Beans again. Turner then pulled the trigger and shot Beans in the neck. Wynn and Turner fled the store as Beans lost consciousness and later died.
{¶ 5} Based on the foregoing version of events, which the State’s evidence suppоrted, a jury found Wynn guilty of complicity to commit felony murder. The trial court sentenced him
[T]he evidence demonstrates that Wynn knowingly aided and abetted Turner in the murder. The video shows Wynn stepping in to punch Beans after Turner already had trained his gun on Beans. Turner was also struggling to get the gun away from Beans when Wynn punched Beans for the second time. Accordingly, the video, combined with the testimony in this case, indicates that Wynn knowingly assisted Turner in committing the felonious assault that proximately resulted in Beans’ death. Id. at ¶ 107.
{¶ 6} The matter is now before us in regard to Appellant’s timely filed petition for post-conviction relief. He later filed an amended petition, which the trial court accepted. In both petitions, Wynn asserted ineffective assistance of trial counsel.
{¶ 7} In support of his petition, Wynn provided his own affidavit. He averred that a third person, known to him only as “Little E” or “Eric,” was in Turner’s car at the time of the shooting.1 Wynn further averred that he did not retrieve the handgun from inside his house. Rather, he removed it from a hidden compartment inside Turner’s car and gave the weapon to Turner without knowing why Turner wanted it. Wynn stated that he tried to talk Turner out of shooting Beans after he discovered Turner’s intent. Wynn also averred that he entered the convenience store planning to start a fight with Beans and hoping the commotion would prevent
{¶ 8} Wynn also provided an affidavit from Angela Hall, his mother. Hall averred that she was home all day on the day of the shooting. She stated that Turner and another person came to her house around 6:30 a.m. and picked up Wynn. Hall averred that Wynn did not return home until that evening after the shooting. Police officers then arrived, and Hall told Wynn to cooperate with them. According to Hall, Wynn’s trial counsel planned to call her as a witness but failed to do so.
{¶ 9} In addition to his own affidavit and his mother’s affidavit, Wynn provided four identical affidavits from inmates at the Warren Correctional Institution. Each of these affidаvits states:
- I am acquainted with the Defendant in this case. He is known to me as “Tone.” Until seeing him in the Warren Correctional Institution, I didn’t know his full name, just as I didn’t know that “George’s” whole name is George Turner, and I still don’t know Little E’s name other than that his first name is Eriс.
- Prior to my incarceration, I lived in Dayton, Ohio, and I knew that Defendant and George hung together a lot. I also knew that Little E hung with George a lot. It was common knowledge to those who are familiar with these three that Little E looked up to George.
(Doc. #6 at affidavits).
{¶ 10} Also attached to Wynn’s amended petition was a copy of a post-conviction letter
{¶ 11} On April 4, 2013, the trial court denied the petition without an evidentiary hearing. (Doc. #11). It reasoned that trial counsel could not be faulted for failing to produce a witness, “Little E,” whose last name was unknown to Wynn. The trial court also found no reasonable probability that the jury would have reached a different result if it had heard the purported testimony from “Little E” and Wynn’s mother. This appeal followed.
{¶ 12} “To prevail on a petition for post-conviction relief, the defendant must establish a violation of his constitutional rights which renders the judgment of conviction void or voidablе.” State v. Simons, 2d Dist. Champaign No. 2013 CA 5, 2013-Ohio-3654, ¶ 11. When a petition alleges ineffective assistance of trial counsel, “‘the petitioner bears the initial burden to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of comрetent counsel and that the defense was prejudiced by counsel‘s ineffectiveness.’” State v. Kapper, 5 Ohio St.3d 36, 38, 448 N .E.2d 823 (1983), quoting State v. Jackson, 64 Ohio St.2d 107, 413 N.E.2d 819 (1980). A trial court may deny a petition without a hearing “where the petition, the supporting affidavits, the documentary evidence, the files, and thе records do not demonstrate that petitioner set forth sufficient operative facts to establish substantive grounds for relief.” State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999), paragraph two of the syllabus. We review a trial court’s denial of post-conviction relief for an abuse of discretion. Simons at ¶ 13.
{¶ 13} With the foregoing standards in mind, we turn to Wynn’s appeal. Relying on the evidentiary materials attached to his initial and amended petitions, Wynn first contends his trial
{¶ 14} With regard to Wynn’s claim that his attorney failed to сonduct any investigation, the record reveals otherwise. The letter from counsel upon which Wynn relies states only that no investigator was hired, not that counsel conducted no investigation. As the State correctly notes, Wynn’s trial сounsel appears to have performed competently. He took discovery, pursued a lengthy motion to suppress with a hearing, filed a list of potential witnesses, interviewed Wynn’s co-defendant, and engaged in cross-еxamination at trial that demonstrated a thorough understanding of the facts and a plan to exploit them to Wynn’s advantage.
{¶ 15} As for the affidavit from Wynn’s mother, it fails to demonstrate substantive grounds for relief. Angela Hall averred that Wynn left her house in the morning and, because she was home all day with the doors locked, she knew Wynn did not return until after the shooting of
{¶ 16} Wynn also complains that his trial counsel filed “pro forma pre-trial motions.” In support, he references only a motion to suppress and various transcript pages. This issue could have been raised on direct appeal because Wynn does not rely on any evidence outside the record. Therefore, res judicata precludes him from raising it in a post-conviction proceeding. State v. Reynolds, 79 Ohio St.3d 158, 161, 679 N.E.2d 1131 (1997). In addition, Wynn’s
{¶ 17} Finally, Wynn takes issue with the State’s failure to respond to his post-conviction relief petition below. He suggests that the lack of a response below may meаn no final, appealable order exists and that the State is precluded from filing a brief on appeal. Wynn is mistaken. “Although
{¶ 18} For the foregoing reasons, we overrule Wynn’s assignments of error and affirm the judgment of the Montgomery County Common Pleas Court.
FAIN, J., and WELBAUM, J., concur.
Copies mailed to:
Mathias H. Heck
Carley J. Ingram
Antonio Wynn
Hon. Frances E. McGee