State v. Flenner , 2022 Ohio 2831 ( 2022 )

[Cite as State v. Flenner, 2022-Ohio-2831.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
STATE OF OHIO, CASE NO. 2022-T-0003
Plaintiff-Appellee,
Civil Appeal from the
-v- Court of Common Pleas
CECIL LEE FLENNER,
Trial Court No. 2016 CR 00641
Defendant-Appellant.
OPINION
Decided: August 15, 2022
Judgment: Affirmed
Dennis Watkins, Trumbull County Prosecutor, and Ryan J. Sanders, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).
Cecil Lee Flenner, pro se, PID# A694-592, Noble Correctional Institution, 15708
McConnelsville Road, Caldwell, OH 43724 (Defendant-Appellant).
THOMAS R. WRIGHT, P.J.
{¶1} Appellant, Cecil Lee Flenner, appeals the dismissal, without hearing, of his
postconviction relief petition. We affirm.
{¶2} In 2017, Flenner was convicted of seven felony offenses, including
aggravated burglary, rape, and kidnapping. This court affirmed the convictions on direct
appeal. State v. Flenner, 11th Dist. Trumbull No. 2017-T-0054, 2018-Ohio-1027, delayed
appeal denied, 153 Ohio St.3d 1437, 2018-Ohio-2697, 101 N.E.3d 467.
{¶3} On July 13, 2018, Flenner filed a pro se petition to vacate or set aside the
judgment of conviction or sentence, arguing a denial of his rights to a fair trial and due
process because his trial counsel was ineffective. The trial court dismissed the petition,
without a hearing, and issued findings of fact and conclusions of law. Specifically, the
trial court held that Flenner failed to establish substantive grounds for relief and that his
arguments were barred under the doctrine of res judicata.
{¶4} Flenner raises four assignments of error:
[1.] Abuse of discretion: The Trial Court abused its discretion
when it disposed of Appellant’s Post-Conviction Petition
(PCR) based on an unreasonable determination of the facts
in light of the evidence presented at trial.
[2.] Res judicata is misapplied in the case at bar.
[3.] Ineffective assistance of Trial Counsel: Counsel’s failure
to call a clinical expert caused extreme prejudice to appellant
as the outcome of the trial would have been different.
[4.] Compulsory Process. The structure of the trial collapsed
when Plaintiff was denied his right to compulsory process.
As the arguments in these assigned errors are intertwined, we consolidate them for
review. Flenner asserts that the trial court abused its discretion by dismissing the petition
without a hearing and misapplied the doctrine of res judicata.
{¶5} “Any person who has been convicted of a criminal offense * * * and who
claims that there was such a denial or infringement of the person’s rights as to render the
judgment void or voidable under the Ohio Constitution or the Constitution of the United
States” “may file a postconviction relief petition in the court that imposed sentence, stating
the grounds for relief relied upon, and asking the court to vacate or set aside the judgment
or sentence or to grant other appropriate relief[.]” R.C. 2953.21(A)(1)(a)(i).
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{¶6} “Before granting a hearing on a petition filed under division (A)(1)(a)(i) * * *
of this section, the court shall determine whether there are substantive grounds for relief.”
(Emphasis added.) R.C. 2953.21(D). “In making such a determination, the court shall
consider, in addition to the petition, the supporting affidavits, and the documentary
evidence, all the files and records pertaining to the proceedings against the petitioner,
including, but not limited to, the indictment, the court’s journal entries, the journalized
records of the clerk of the court, and the court reporter’s transcript.” Id. “If the court
dismisses the petition, it shall make and file findings of fact and conclusions of law with
respect to such dismissal.” Id. “Unless the petition and the files and records of the case
show the petitioner is not entitled to relief, the court shall proceed to a prompt hearing on
the issues even if a direct appeal of the case is pending.” R.C. 2953.21(F).
{¶7} We review a trial court’s decision on a postconviction petition for an abuse
of discretion. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶
58. “[A]n abuse of discretion is the trial court’s ‘“failure to exercise sound, reasonable,
and legal decision-making.”’” Ivancic v. Enos, 2012-Ohio-3639, 978 N.E.2d 927, ¶ 70
(11th Dist.), quoting State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶
62, quoting Black’s Law Dictionary 11 (8 Ed.2004). “‘Absent a showing of abuse of
discretion, a reviewing court will not overrule the trial court’s finding on a petition for post-
conviction relief which is supported by competent and credible evidence.’” Gondor at ¶
50, quoting State v. Mitchell, 53 Ohio App.3d 117, 119, 559 N.E.2d 1370 (8th Dist.1988).
{¶8} In his petition, Flenner claimed he was denied the effective assistance of
counsel because his trial counsel failed to bring forth expert testimony or request a
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competency hearing on the state’s victim witness, whom Flenner alleges suffers from
schizoaffective disorder.
{¶9} “Counsel’s performance will not be deemed ineffective unless and until
counsel’s performance is proved to have fallen below an objective standard of reasonable
representation and, in addition, prejudice arises from counsel’s performance.” State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. The
defendant must demonstrate that “counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and “that
counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). “Unless a defendant makes both showings, it cannot be said that
the conviction * * * resulted from a breakdown in the adversary process that renders the
result unreliable.” Id.{¶10} “To warrant an evidentiary hearing in a postconviction proceeding, a
petitioner must submit evidence outside the record that sufficiently establishes that the
petitioner is entitled to relief on one or more asserted constitutional grounds.” (Citations
omitted.) State v. Broom, 146 Ohio St.3d 60, 2016-Ohio-1028, 51 N.E.3d 620, ¶ 29.
“Where ineffective assistance of counsel is alleged in a petition for postconviction relief,
the defendant, in order to secure a hearing on his petition, must proffer evidence which,
if believed, would establish not only that his trial counsel had substantially violated at least
one of a defense attorney’s essential duties to his client but also that said violation was
prejudicial to the defendant.” (Citations omitted.) State v. Cole, 2 Ohio St.3d 112, 114,
443 N.E.2d 169 (1982).
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{¶11} Flenner presented his claim for ineffective assistance of trial counsel as
follows:
I did not get a fair trial and due process because counsel did
not bring forth testimony from a psychiatrist or expert to
conduct a competency hearing on the state’s witness. She is
diagnosed with schizoaffective disorder.
Exhibit 1, a definition of schizoaffective disorder, symptoms of
the illness, treatment, and other related conditions. I will show
in her past medical records where she has already been
diagnosed with this mental illness. I will also show in the
transcripts where she states several symptoms and that she
belongs to Coleman Behavioral and is under a physician for
care.
Evidence supporting this claim is not attached because
Petitioner needs the assistance of an attorney, investigator,
psychologist and/or psychiatrist to produce the evidence.
(See Petitioner’s Motions for Expert Assistance and for
Appointment of Counsel, filed with this petition.)
{¶12} In support of his petition, Flenner attached “Exhibit 1,” which is a
handwritten four-page list, without references or sources, of the symptoms, diagnosis,
and treatment of schizoaffective disorder. Flenner also filed a motion for expert
assistance from a psychiatrist, in which he cites to multiple Ohio cases where there was
testimony that a witness had schizoaffective disorder. Flenner then states that the victim
witness in his case exhibits the same symptoms as those described.
{¶13} Flenner provides no support for trial counsel’s alleged deficiency or
prejudice resulting from trial counsel’s performance. Rather, he offers nothing more than
his personal opinion that the victim’s trial testimony is evidence that she suffers from a
mental illness. And, although he requested the trial court to provide him with expert
assistance, he is not entitled to such assistance in postconviction proceedings. State v.
Jackson, 11th Dist. Trumbull No. 2004-T-0089, 2006-Ohio-2651, ¶ 24 (“since a
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proceeding under R.C. 2953.21 is considered civil, there is no constitutional right to expert
assistance”). Accordingly, Flenner has failed to demonstrate sufficient operative facts to
establish substantive grounds for relief. As this basis alone is sufficient to affirm the trial
court’s decision to dismiss the petition without a hearing, we need not address Flenner’s
res judicata argument.
{¶14} Flenner’s assignments of error are without merit. The trial court’s dismissal
of Flenner’s postconviction relief petition is affirmed.
CYNTHIA WESTCOTT RICE, J.,
MARY JANE TRAPP, J.,
concur.
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