State v. Smith , 2011 Ohio 664 ( 2011 )

[Cite as State v. Smith , 2011-Ohio-664.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 09CA3128
:
vs. : Released: February 8, 2011
:
JOHN F. SMITH, : DECISION AND JUDGMENT
: ENTRY
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
Robert F. Benintendi, Batavia, Ohio, for Defendant-Appellant.
Michael M. Ater, Ross County Prosecuting Attorney, and Richard W. Clagg,
Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for Plaintiff-
Appellee.
_____________________________________________________________
McFarland, J.:
{¶1} John F. Smith, Defendant-Appellant, appeals the decision of
the Ross County Court of Common Pleas, denying his petition for post-
conviction relief based on ineffective assistance of counsel. Smith argues
the court erred in finding that his petition was barred by res judicata and in
finding that he failed to establish adequate grounds for his petition.
However, the evidence Smith relied on in his postconviction petition was in
the trial court record and available during his direct appeal. Further,
ineffective assistance is not demonstrated merely because a postconviction
Ross App. No. 09CA3128 2
petition presents new expert opinion that is different from a theory used at
trial. As such, we find the trial court properly determined that Smith's
postconviction petition was barred by the doctrine of res judicata.
I. Facts
{¶2} John Smith was indicted on one count of felonious assault and
one count of involuntary manslaughter for causing the death of Bryan Biser.
During an argument among several people, Smith, without provocation,
punched Biser in the head. After Smith struck him, Biser immediately fell,
his face hitting a parked car and his head hitting the pavement below. Biser
was knocked unconscious as a result.
{¶3} Biser was transported to the hospital where he informed
medical personnel that he suffered from diabetes. He refused emergency
room treatment for his head injuries and diabetes, though he had a highly
elevated blood-glucose level. Biser stated that he had insulin at home and
did not want to purchase more at the hospital. He also refused to have a
CAT scan, as recommended by the emergency room doctor. The doctor
discharged Biser, but ordered him to return immediately if he experienced
any vomiting, confusion or vision problems.
{¶4} For the next several days, friends who stopped at Biser’s
residence found him to be confused, complaining of pain, and wishing to be
Ross App. No. 09CA3128 3
left alone. Four days after Smith struck him, Biser was found lying
unconscious on the floor of his residence. His feet and left arm had turned
black and he was struggling to breathe.
{¶5} At the emergency room, a CAT scan of Biser’s head revealed
a possible skull fracture, a small subdural hematoma, and subarachnoid
hemorrhage. Biser was also in severe diabetic ketoacidosis, a condition
resulting from failure to take insulin. Exploratory surgery revealed necrotic
bowel and colon tissue, which was terminal. Biser died several hours after
surgery. After an autopsy, the cause of death was ruled to be homicide due
to blunt force craniocerebral injuries.
{¶6} Smith was indicted for felonious assault and involuntary
manslaughter and the matter proceeded to trial. Dr. William Cox, a forensic
neuropathologist for the county coroner, testified that the cause of death
listed on the death certificate was incorrect. Instead, Cox stated that Biser’s
death was a result of diabetic ketoacidosis. He testified that Smith’s punch
to Biser’s head and Biser’s head striking the ground caused Biser to suffer
contusions to his brain that damaged his frontal lobes. Cox testified that the
damage to Biser’s frontal lobes affected his cognitive ability and made him
apathetic, uninhibited and disinterested. He further testified that Biser’s
head injury substantially contributed to his death, and the damage to his
Ross App. No. 09CA3128 4
frontal lobes “clearly would have adversely affected [Biser’s] ability to look
after himself.”
{¶7} The jury found Smith guilty of both felonious assault and
involuntary manslaughter. The trial court merged the two counts and
sentenced Smith to eight years in prison. Smith filed a direct appeal and we
affirmed his conviction and sentence in State v. Smith, 4th Dist. No.
06CA2893, 2007-Ohio-1884. Smith then appealed our decision in the
Supreme Court of Ohio, which the Court dismissed.
{¶8} While his direct appeal was pending, Smith petitioned the trial
court for post-conviction relief under R.C. 2953.21. The basis of the petition
was ineffective assistance of counsel during trial. The trial court granted his
request for an evidentiary hearing on the issue. After additional motions and
appeals concerning the motion, an evidentiary hearing was finally held on
April 9, 2009. After the hearing, the trial court issued its decision denying
Smith’s motion for post-conviction relief. In its entry, the trial court stated
that Smith’s claim of ineffective assistance of counsel was barred by res
judicata. That decision is the basis of Smith’s current appeal.
Ross App. No. 09CA3128 5
II. Assignments of Error
First Assignment of Error
THE TRIAL COURT ERRED IN FINDING THAT APPELLANT’S
PETITION FOR POST-CONVICTION RELIEF WAS BARRED BY
RES JUDICATA.
Second Assignment of Error
THE TRIAL COURT ERRED IN FINDING THAT APPELLANT
HAD NOT DEMONSTRATED GROUNDS FOR POST-
CONVICTION RELIEF.
III. First Assignment of Error
{¶9} In his first assignment of error, Smith argues that the trial
court incorrectly determined that his petition for postconviction relief was
barred by the doctrine of res judicata. In his petition, Smith argues that he
was denied effective assistance of counsel during trial. In denying the
petition, the trial court reasoned that Smith could have brought a claim of
ineffective assistance during his direct appeal and, thus, he was precluded
from raising the issue in postconviction proceedings.
{¶10} “Under the doctrine of res judicata, a final judgment of
conviction bars a convicted defendant who was represented by counsel from
raising and litigating in any proceeding except an appeal from that judgment,
any defense or any claimed lack of due process that was raised or could have
been raised by the defendant at the trial, which resulted in that judgment of
conviction, or on an appeal from that judgment.” State v. Perry (1967), 10
Ross App. No. 09CA3128 6
Ohio St.2d 175, 226 N.E.2d 104, paragraph 9 of the syllabus. Additionally,
res judicata applies to proceedings involving postconviction relief. State v.
Szefcyk (1996), 77 Ohio St.3d 93, 95. But the application of res judicata in
postconviction proceedings is not absolute.
{¶11} The doctrine of res judicata may be overcome in a
postconviction proceeding if the petitioner presents competent, relevant, and
material evidence outside the record. See, eg., State v. Lawson (1995), 103
Ohio App.3d 307, 315, citing State v. Smith (1985), 17 Ohio St.3d 98, 101,
477 N.E.2d 1128, fn. 1. “However, the evidence presented outside the
record must meet some threshold standard of cogency; otherwise, it would
be too easy to defeat the res judicata doctrine by simply attaching as exhibits
evidence which is only marginally significant and does not advance the
petitioner's claim beyond mere hypothesis and a desire for further
discovery.” In re J.B., 12th Dist. Nos. CA2005-06-176, CA2005-07-193,
CA2005-08-377, 2006-Ohio-2715, at ¶16. “Moreover, claims that could
have been raised based on evidence in the record are also barred by res
judicata even though the petitioner may have presented some additional
evidence outside the record.” State v. Turner, 10th Dist. No. 04AP-1143,
2006-Ohio-761, citing State v. Cole (1982), 2 Ohio St.3d 112, 443 N.E.2d
Ross App. No. 09CA3128 7
169, at the syllabus, and State v. Combs (1994), 100 Ohio App.3d 90, 97,
652 N.E.2d 205.
{¶12} As previously stated, Smith bases his petition for post-
conviction relief on a claim of ineffective assistance of counsel during trial.
Smith argues that his trial counsel’s representation was deficient because
counsel failed to present expert testimony concerning the proximate cause of
Biser’s death. During the postconviction evidentiary hearing, Smith
presented the testimony of Dr. Christofides, an endocrinologist, on that
issue. Smith’s post-conviction petition relies almost entirely upon Dr.
Christofides’ testimony during the post-conviction evidentiary hearing of
April 9, 2009.
{¶13} During Smith’s trial, Dr. William Cox testified that Biser’s
death ultimately was a result of diabetic ketoacidosis. But he also stated that
Biser’s death was causally related to Smith's assault. Cox stated that the
assault caused injury to the frontal lobes of Biser’s brain which affected his
cognitive ability and made him apathetic and disinterested. As a result,
Biser failed to take insulin for his diabetes and he went into diabetic
ketoacidosis. During the post-conviction evidentiary hearing, Dr.
Christofides presented an alternate theory regarding the cause of Bryan
Biser’s death. Dr. Christofides testified that, in her opinion, the head injury
Ross App. No. 09CA3128 8
resulting from Smith's assault did not result in Biser’s death. Instead, it was
Dr. Christofides opinion that Biser’s death was simply the result of his long-
standing mismanagement of his diabetes.
{¶14} During cross-examination, the State question Dr. Christofides
as to the source of the evidence she used in formulating her theory:
{¶15} Q.: “You talked about the type one diabetes which obviously
that was something everybody was aware of at the time of trial, correct?”
{¶16} A.: “Correct.”
{¶17} Q.: “So, that wasn't new information to defense counsel at
the time of trial, correct?”
{¶18} A.: “I don't think so."
{¶19} * * *
{¶20} Q.: “And all the information that we've been talking about as
far as the overdoses and things of that nature, that was all available at the
time of the trial, correct?”
{¶21} A.: “As far as I can see.”
{¶22} Q.: “It was all stuff that's in 2005 records, correct?”
{¶23} A.: “As far as I can see.”
{¶24} Q.: “Okay. Now, you say you observed Dr. Cox's testimony.
You went through the records on Dr. Cox's testimony, correct. Did you note
Ross App. No. 09CA3128 9
that defense counsel addressed the issues of increased blood glucose levels
during Dr. Cox's testimony?”
{¶25} A.: “Yes.”
{¶26} Q.: “And the affidavit that you prepared in and the
conclusions that you reached and the, when this petition was initially filed,
this is based, that was all originally based on information that was provided
to you that was available at trial, is that correct?”
{¶27} A.: “Correct.”
{¶28} Dr. Christofides’ testimony clearly shows that her theory as to
the proximate cause of Biser’s death was based on evidence which was
available at the time of Smith's trial. As such, a claim of ineffective
assistance of counsel based on that evidence should have been raised in
Smith's direct appeal. More importantly, as shown below, Ohio courts have
held that the presentation of alternate theories by expert witnesses in
postconviction proceedings will not defeat the application of res judicata.
{¶29} “A postconviction petition does not show ineffective
assistance merely because it presents a new expert opinion that is different
from the theory used at trial.” Combs at 103. “[T]o the extent that appellant
may now wish to expand upon the point, it is settled that a postconviction
petition does not demonstrate ineffective assistance of counsel even when it
Ross App. No. 09CA3128 10
presents a new expert opinion that is different from the theory used at trial.”
State v. Cornwell, 7th Dist. No. 00-CA-217, 2002-Ohio-5177, at ¶46. See,
also, State v. Roseborough, 5th Dist. Nos. 09 COA 003, 09 COA 004, 2010-
Ohio-1832, at ¶17; State v. Tenace, 6th Dist. No. L-05-1041, 2006-Ohio-
1226, at ¶26; State v. Turner, 10th Dist. No. 04AP-1143, 2006-Ohio-761, at
¶35; State v. White (Aug. 7, 1998), 5th Dist. No. 97COA01229, at *9.
{¶30} In State v. Tenace, the petitioner for post-conviction relief
argued that he had been given ineffective assistance of counsel during trial.
In his petition, he included the affidavit of an expert witness who stated that
the appellant suffered from low serotonin levels. The petitioner argued that
his trial counsel rendered ineffective assistance because he failed to
investigate and present evidence linking the appellant's low levels of
serotonin and his violent behavior. In finding that the petitioner had failed
to present evidence to substantiate his postconviction petition, the court
stated “this affidavit only proves that there was another possible defense
strategy available. The mere existence of an alternative theory of defense,
however, is insufficient to establish ineffective assistance of counsel.”
Tenace at ¶26.
{¶31} The ruling in Tenance is analogous to the case sub judice.
Here, Dr. Christofides is simply presenting another theory as to the
Ross App. No. 09CA3128 11
proximate cause of Bisler’s death. Ohio case law clearly shows that
alternate or supplementary theories from expert witnesses, which are
presented in postconviction proceedings, are not sufficient to establish
ineffective assistance of counsel and overcome the application of res
judicata. Accordingly, we overrule Smith's first assignment of error.
{¶32} The record clearly shows that the evidence Dr. Christofides
relied on was available at the time of trial. Because such information was in
the trial record, Smith could have and should have raised issues relating to
that evidence at the time of his direct appeal. Additionally, alternate theories
presented by an expert witness during postconviction proceedings do not
show that the petitioner had ineffective assistance of counsel. As such, we
find that Smith's postconviction petition is barred by the doctrine of res
judicata. As Smiths’ petition is barred by res judicata, his second
assignment of error is rendered moot.
JUDGMENT AFFIRMED.
Ross App. No. 09CA3128 12
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellee recover of 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 Ross County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Kline, J.: Concurs in Judgment Only.
Harsha, P.J.: Dissents.
For the Court,
BY: _________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.