State v. Doogs , 2019 Ohio 4610 ( 2019 )

[Cite as State v. Doogs, 2019-Ohio-4610.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals Nos. WD-19-046
Appellee
Trial Court No. 2013CR0316
v.
Ronald J. Doogs DECISION AND JUDGMENT
Appellant Decided: November 8, 2019
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney, for appellee.
Ronald J. Doogs, pro se.
*****
PIETRYKOWSKI, J.
{¶ 1} This pro se accelerated appeal is before the court on defendant-appellant
Ronald J. Doogs’ appeal of the June 11, 2019 judgment of the Wood County Court of
Common Pleas summarily denying his successive petition for postconviction relief. For
the reasons that follow, we affirm.
{¶ 2} The relevant facts are follows. On November 4, 2015, following a jury trial
convicting him of rape and gross sexual imposition, appellant was sentenced to a total of
12 years and 6 months of imprisonment. On March 22, 2016, while his direct appeal was
pending, appellant filed a petition for postconviction relief arguing ineffective assistance
of appellate counsel. The 200-page petition included an affidavit of appellant’s trial
counsel detailing her multitude of failings including the failure to call certain defense
witnesses, failure to properly cross-examine witnesses, and failure to prepare witnesses
for trial. It also included several affidavits of individuals indicating the testimony they
would have presented on appellant’s behalf had they been subpoenaed for trial.
{¶ 3} On April 21, 2016, the trial court denied the petition finding that much of the
alleged omitted evidence and testimony was either not relevant or inadmissible. As to the
missing furniture, which appellant argued discredited L.B.’s testimony that she saw
appellant and the victim on the couch and bed, the court noted that the time frame varied
as to the date of the rape as well as the removal of the furniture. The court noted that the
police reports regarding missing items would not support appellant’s arguments. The
court ultimately concluded that appellant did not receive ineffective assistance of trial
counsel and dismissed the petition.
{¶ 4} On July 21, 2017, this court affirmed appellant’s conviction and sentence
and the denial of his postconviction petition. See State v. Doogs, 6th Dist. Wood Nos.
WD-15-073, WD-016-027, 2017-Ohio-6914. Rejecting the merits of the ineffective
2.
assistance of counsel claim and the postconviction petition, we found that even assuming
that counsel was ineffective, appellant failed to demonstrate that but for any errors made
by counsel, the result of the proceedings would have been different. Id. at ¶80, 88. We
further found that the trial court did not abuse its discretion in denying the petition
without conducting a hearing. Id. at ¶ 88.
{¶ 5} On May 28, 2019, appellant filed an untimely, successive petition for
postconviction relief. Appellant claimed that he was unavoidably prevented from
discovery of the facts in support of the petition because his trial attorney had been
recently sanctioned for ethical violations relating to her representation of him. See Wood
Cty. Bar Assn. v. Driftmyer, 155 Ohio St. 3d 603, 2018-Ohio-5094, 122 N.E.3d 1262.
Appellant argued that his attorney’s sanction demonstrated that he was denied the
effective assistance of counsel and he requested that an evidentiary hearing be held and
that counsel be appointed to represent him. On June 11, 2019, without a hearing, the trial
court summarily denied appellant’s petition. This appeal followed.
{¶ 6} Appellant now raises four assignments of error for our review:
Assignment of Error No. 1: The trial court committed prejudicial
error in summarily dismissing the petition for postconviction relief as being
successive and not filing written findings of facts and conclusions of law.
Assignment of Error No. 2: The trial court committed prejudicial
error in sua sponte granting the appellee a summary judgment in violation
of appellant’s due process right.
3.
Assignment of Error No. 3: It was prejudicial error and a denial of
the appellant’s absolute right to procedural due process of law for the trial
court to summarily dismiss the petition without first ordering and
conducting an evidentiary hearing in the case.
Assignment of Error No. 4: It was prejudicial error and a violation of
the appellant’s absolute right to procedural due process of law for the trial
court not to grant relief in this case.
{¶ 7} Appellant’s four assignments of error are related and will be jointly
addressed. R.C. 2953.23 sets forth specific requirements to permit consideration of the
May 28, 2019 motion as an untimely and successive petition for postconviction relief.
R.C. 2953.23 provides that a trial court is forbidden from entertaining untimely or
successive petitions for postconviction relief unless it meets two conditions. The
petitioner must first show either that he was unavoidably prevented from discovering the
facts upon which he relies in the petition, or that the United States Supreme Court has,
since his last petition, recognized a new federal or state right that applies retroactively to
the petitioner. Then, the petitioner must show by clear and convincing evidence that a
reasonable factfinder would not have found him guilty but for constitutional error at trial.
R.C. 2953.23(A)(1); State v. Brooks, 6th Dist. Lucas Nos. L-12-1348, L-12-1349, 2014-
Ohio-427, ¶ 12, citing State v. Ayers, 6th Dist. Erie No. E-07-072, 2009-Ohio-393, ¶ 15.
In the case of a successive petition, the petition is barred by res judicata. Brooks at ¶ 14.
{¶ 8} Our review of a trial court’s denial of a petition for postconviction relief is
for an abuse of discretion. State v. Gondor, 112 Ohio St. 3d 377, 2006-Ohio-6679, 860
4.
N.E.2d 77, ¶ 58. Abuse of discretion connotes more than an error of law; it implies the
trial court acted arbitrarily, unreasonably, or unconscionably. Blakemore v. Blakemore, 5
Ohio St. 3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 9} Reviewing the record of the proceedings below, we find that the only
discernable difference between appellant’s initial petition and the one currently on review
is the intervening discipline of appellant’s trial counsel. In its decision, the Supreme
Court of Ohio adopted the board’s findings of misconduct which included failure to act
with reasonable diligence in representing a client, failing to hold a client’s property in an
interest-bearing client account, requiring an attorney to maintain a copy of a fee
agreement, and failure to respond to a demand for information from a disciplinary
authority. Driftmyer at ¶ 12. The court referenced the stipulated dismissal of the alleged
violation of Prof.Cond.R. 1.1, the requirement that a lawyer provide competent
representation to a client. Id. at ¶ 3.
{¶ 10} Accordingly, we find that appellant has again failed to demonstrate that but
for trial counsel’s errors, a reasonable factfinder would not have found him guilty. On
this basis, the trial court did not err in denying the untimely, successive petition without
first conducting a hearing. See State v. Unsworth, 6th Dist. Lucas No. L-14-1238, 2015-
Ohio-3197. ¶ 16; State v. Sandoval, 6th Dist. Sandusky Nos. S-13-032, S-13-034, 2014-
Ohio-4972, ¶ 30-33.
{¶ 11} Based on the foregoing, we find that the trial court did not abuse its
discretion when it denied appellant’s untimely, successive petition or postconviction
relief. Appellant’s first, second, third, and fourth assignments of error are not well-taken.
5.
{¶ 12} On consideration whereof, we find that appellant was not prejudiced or
prevented from having a fair proceeding and the judgment of the Wood County Court of
Common Pleas is affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs
of this appeal.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
6.