State v. Casey , 113 N.E.3d 959 ( 2018 )

[Cite as State v. Casey, 2018-Ohio-2084.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLINTON COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2017-08-013
: OPINION
- vs - 5/29/2018
:
LARRY L. CASEY, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS
Case No. CRI 2015-5239
Mike DeWine, Ohio Attorney General, Joel King, Assistant Attorney General, 441 Vine
Street, 1600 Carew Tower, Cincinnati, Ohio 45202, for plaintiff-appellee
Larry L. Casey, #A722225, Chillicothe Correctional Institution, P.O. Box 5500, Chillicothe,
Ohio 45601, defendant-appellant, pro se
HENDRICKSON, J.
{¶ 1} Defendant-appellant, Larry L. Casey, appeals from a decision of the Clinton
County Court of Common Pleas denying his petition for postconviction relief without holding a
hearing. For the reasons set forth below, we affirm the trial court's decision.
{¶ 2} The underlying facts relevant to appellant's appeal were previously set forth by
this court in State v. Casey, 12th Dist. Clinton Nos. CA2016-01-001 and CA2016-06-013,
Clinton CA2017-08-013
2017-Ohio-790 (hereafter, "Casey I") and are as follows:
On March 25, 2015, the Clinton County Grand Jury returned an
indictment charging Casey with failing to notify of his change of
address as a Tier III sex offender. Thereafter, on June 22, 2015,
the Clinton County Grand Jury returned another indictment
charging Casey with five counts of sexual battery, five counts of
rape, and one count of unlawful sexual conduct with a minor.
With the exception of the one count alleging unlawful sexual
conduct with a minor, all of the charges included a sexually
violent predator specification. According to the bill of particulars,
these charges stemmed from allegations Casey engaged in
various sex acts with N.J., both before and after she turned 13
years old.
The matter ultimately proceeded to a four-day jury trial that
concluded on January 8, 2016. At trial, N.J., who was then 15
years old, testified to several instances where Casey had sexual
intercourse with her both before and after she turned 13.
According to N.J.'s testimony, these incidents occurred multiple
times between 2009 and 2014 while she was living in both
Warren County and Clinton County. Casey denied ever engaging
in any sex acts with N.J. Rather, Casey claimed N.J. was lying
and that the allegations were all part of a grand conspiracy
between N.J. and her father.
After both parties rested, the jury returned a verdict finding Casey
guilty of two counts of sexual battery, one count of rape, and for
having unlawful sexual conduct with a minor. The jury also found
Casey guilty of failing to provide notice of his change of address.
After the jury reached its verdict, the trial court held a hearing
wherein it classified Casey as a sexually violent predator
and sentenced him to serve a mandatory indefinite term of 25
years to life in prison.
Casey I at ¶ 2-4.
{¶ 3} Appellant directly appealed his convictions, arguing his trial counsel provided
ineffective assistance by (1) failing to object to hearsay testimony, (2) failing to object to
unqualified expert testimony, and (3) eliciting testimony that he was in jail at the time of trial.
Casey I at ¶ 10-14. Appellant also argued his conviction should be reversed as a result of
trial counsel's cumulative errors. Id. at ¶ 16-17. We found appellant's arguments to be
without merit, overruled his assigned errors, and affirmed his convictions. Id. at ¶ 18.
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{¶ 4} Subsequent to our decision in Casey I, appellant moved to reopen his appeal
pursuant to App.R. 26(B). Appellant argued his appellate counsel was ineffective for either
neglecting to raise or failing to adequately explain trial counsel's ineffective representation as
it related to trial counsel's failure to (1) object to hearsay statements, (2) object to the
admission of evidence, (3) object to Evid.R. 404(B) evidence, (4) adequately prepare for trial,
(5) attempt to negotiate a plea deal, (6) research and develop a theory of defense, and (7)
object to improper statements by the prosecutor. Appellant also argued appellate counsel's
representation was deficient as appellate counsel failed to challenge the sufficiency and
weight of the evidence supporting appellant's convictions. Appellant's application to reopen
his appeal was denied by this court on August 10, 2017. State v. Casey, 12th Dist. Clinton
Nos. CA2016-01-001 and CA2016-06-013 (Aug. 10, 2017) (Entry Denying Application for
Reopening). Appellant asked the court to reconsider its denial of his motion and filed a
"Motion to Establish Good Cause" to reopen the appeal. His request was denied. State v.
Casey, 12th Dist. Clinton Nos. CA2016-01-001 and CA2016-06-013 (Nov. 8, 2017) (Entry
Denying Motion to Establish Good Cause).
{¶ 5} While seeking to reopen his appeal, appellant also sought postconviction relief
in the trial court. On April 3, 2017, appellant, through counsel, filed a Petition for
Postconviction Relief and Request for Hearing. In his petition, appellant argued he was
denied his constitutional right to effective representation as his trial counsel (1) had limited
communication with him, (2) failed to inform he faced a potential life sentence of
incarceration, (3) failed to discuss or explain the sexually violent predator specification
(hereafter, "SVP specification"), (4) failed to advise him about whether he should accept a
plea offer by the state, (5) elicited the fact that appellant was incarcerated during trial and
failed to request a curative jury instruction, (6) applied a flawed trial strategy, and (7) failed to
object to or seek to limit or restrict the state's use of Evid.R. 404(B) evidence. Attached to
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appellant's petition was his own affidavit and the affidavit of an independent defense
attorney. The defense attorney attested that he considered himself to be an "ordinary trial
counsel," he had read appellant's trial transcripts, and he found "[t]rial counsel's strategy * * *
was so outside the realm of legitimate trial strategy [that he] scoffed upon reading it." In his
own affidavit, appellant averred, in relevant part, as follows:
5. Prior to trial, trial counsel communicated with me no more than
three (3) times for a total of no more than forty-five (45) minutes.
6. Trial counsel did not inform me I was facing a potential penalty
of a life term in prison.
7. Trial counsel did not discuss with or explain to me the sexually
violent offender specification * * * or its potential consequences.
8. Trial counsel never advised me whether or not I should accept
the State of Ohio's offer or if I should present my case to trial.
9. Trial counsel did not inform me I was testifying at trial until
approximately five (5) minutes before taking the witness stand.
***
12. I did not know of trial counsel's trial strategy nor did I agree
with it.
{¶ 6} The state filed a memorandum in opposition to appellant's petition for
postconviction relief and moved for summary judgment on the petition pursuant to R.C.
2953.21(E). The state argued that the majority of appellant's claims were bared by the
doctrine of res judicata, as they were either raised and addressed on appellant's direct
appeal in Casey I or were capable of being raised on direct appeal. As for those claims that
were not barred by res judicata, the state argued the record of proceedings contradicted the
assertions set forth in appellant's petition and his self-serving affidavit.
{¶ 7} On July 17, 2017, the trial court dismissed appellant's petition for postconviction
relief without holding a hearing after determining substantive grounds for relief had not been
demonstrated. The trial court concluded that the majority of appellant's claims were barred
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by res judicata. As for those claims not barred by res judicata, the court found that the record
did not support appellant's claims of ineffective assistance of counsel.
{¶ 8} Appellant appealed, pro se, raising three assignments of error.1
{¶ 9} Assignment of Error No. 1:
{¶ 10} APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO DUE
PROCESS COMPORTING WITH THE FOURTEENTH AMENDMENT WHEN THE TRIAL
COURT JUDGE ABUSED HIS DISCRETION AND DISMISSED THE PETITION FOR
POSTCONVICTION RELIEF.
{¶ 11} In his first assignment of error, appellant argues the trial court erred in
dismissing his petition for postconviction relief without holding an evidentiary hearing as his
affidavit and the affidavit of the independent defense attorney set forth sufficient operative
facts to establish substantive grounds for relief. Specifically, appellant argues the record of
proceedings combined with the information set forth in the affidavits demonstrates trial
counsel made numerous mistakes leading up to and during trial, failed to sufficiently prepare
for trial, and employed a strategy that was "outside the realm of [a] legitimate trial strategy."
Appellant contends trial counsel's errors prejudiced his right to a fair trial.
{¶ 12} A postconviction proceeding is not an appeal of a criminal conviction, but
rather, is a collateral civil attack on a criminal judgment. State v. Dillingham, 12th Dist. Butler
Nos. CA2012-02-037 and CA2012-02-042, 2012-Ohio-5841, ¶ 8; State v. Calhoun, 86 Ohio
1. We note that appellant has attached as exhibits to his appellate brief letters and affidavits that were obtained
subsequent to the filing of his petition for postconviction relief and the trial court's dismissal of said petition.
These letters and affidavits, which seek to further explain and describe trial counsel's alleged deficient
representation, do not appear in the trial court record. Pursuant to App.R. 9(A)(1), "[t]he original papers and
exhibits thereto filed in the trial court, the transcript of proceedings, if any, including exhibits, and a certified copy
of the docket and journal entries prepared by the clerk of the trial court shall constitute the record on appeal in all
cases." An appellate court "is confined to the record, and cannot consider evidence offered for the first time on
appeal." State v. Garr, 12th Dist. Butler No. CA2009-01-014, 2009-Ohio-6241, ¶ 23. Therefore, as the letters
and affidavits do not appear in the trial court record, they are not properly before us and will not be considered on
appeal.
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St.3d 279, 281 (1999). Postconviction relief petitions are governed by R.C. 2953.21, which
states, in pertinent part, that
[a]ny person who has been convicted of a criminal offense or
adjudicated a delinquent child 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 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. The petitioner may
file a supporting affidavit and other documentary evidence in
support of the claim for relief.
R.C. 2953.21(A)(1)(a).
{¶ 13} Initial petitions for postconviction relief under R.C. 2953.21 may be resolved in
one of three ways. The trial court may (1) summarily dismiss the petition without holding an
evidentiary hearing pursuant to R.C. 2953.21(D), (2) grant summary judgment on the petition
to either party who moved for summary judgment pursuant to R.C. 2953.21(E), or (3) hold an
evidentiary hearing on the issues raised by the petition pursuant to R.C. 2953.21(F). State v.
Statzer, 12th Dist. Butler CA2017-02-022, 2018-Ohio-363, ¶ 12; State v. McKelton, 12th Dist.
Butler No. CA2015-02-028, 2015-Ohio-4228, ¶ 9.
{¶ 14} "An evidentiary hearing is not automatically guaranteed each time a defendant
makes a petition for postconviction relief." State v. Vore, 12th Dist. Warren Nos. CA2012-06-
049 and CA2012-10-106, 2013-Ohio-1490, ¶ 11. A trial court properly denies a
postconviction relief petition without a hearing if the supporting affidavits, the documentary
evidence, the files, and the records of the case do not demonstrate that the petitioner set
forth sufficient operative facts to establish substantive grounds for relief. State v.
Blankenburg, 12th Dist. Butler No. CA2012-04-088, 2012-Ohio-6175, ¶ 9. See also R.C.
2953.21(D).
{¶ 15} Furthermore, a petition for postconviction relief may be dismissed without an
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evidentiary hearing when the claims raised are barred by the doctrine of res judicata. State
v. Perry, 10 Ohio St. 2d 175, 180 (1967). "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." (Emphasis sic.) Id. at paragraph nine of the syllabus. Res judicata bars a
petitioner from "re-packaging" evidence or issues that either were or could have been raised
in trial or on direct appeal. State v. Rose, 12th Dist. Butler No. CA2012-03-050, 2012-Ohio-
5957, ¶ 20.
{¶ 16} The presentation of competent, relevant, and material evidence outside the
trial record may defeat the application of res judicata. State v. Lawson, 103 Ohio App.3d
307, 315 (12th Dist.1995). Where a petitioner argues ineffective assistance of counsel
through a postconviction relief motion, the petitioner can avoid the bar of res judicata by
submitting evidence outside the record on appeal that demonstrates that the petitioner could
not have raised the claim based on information in the original record. Id. However,
"'[e]vidence presented outside the record must meet some threshold standard of cogency.'"
Statzer, 2018-Ohio-363 at ¶ 16, quoting Lawson at 315. If it does not meet this threshold, a
petitioner could overcome res judicata "'by simply attaching as exhibits evidence which is
only marginally significant and does not advance the petitioner's claim beyond mere
hypotheses and a desire for further discovery.'" Lawson at 315, quoting State v. Coleman,
1st Dist. Hamilton No. C-900811, 1993 Ohio App. LEXIS 1485, *21 (Mar. 17, 1993).
{¶ 17} A trial court's decision to summarily deny a postconviction petition without
holding an evidentiary hearing is left to the sound discretion of the trial court. McKelton,
2015-Ohio-4228 at ¶ 11. The term "abuse of discretion" connotes more than an error of law
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or judgment; it implies the court's attitude was unreasonable, arbitrary, or unconscionable.
Statzer, 2018-Ohio-363 at ¶ 14.
{¶ 18} Where the basis of a petition for postconviction relief is a claim of ineffective
assistance of counsel, the defendant must show that his or her counsel's actions were
outside the wide range of professionally competent assistance, and that prejudice resulted by
reason of counsel's actions. State v. Martin, 12th Dist. Warren Nos. CA2003-06-065 and
CA2003-06-066, 2004-Ohio-702, ¶ 12, citing Strickland v. Washington, 466 U.S. 668, 687,
104 S.Ct. 2052 (1984). To show prejudice, a defendant must prove there exists "a
reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." State v. Wilson, 12th Dist. Madison No. CA2013-10-
034, 2014-Ohio-2342, ¶ 17, quoting Strickland at 694.
Res Judicata: Testimony of Incarceration, Curative
Instruction, and 404(B) Evidence
{¶ 19} In the present case, we find no error in the trial court's decision to dismiss
appellant's petition for postconviction relief without holding an evidentiary hearing. Many of
the claims appellant set forth in his petition for postconviction relief are barred by the doctrine
of res judicata, as they were either raised on direct appeal in Casey I, 2017-Ohio-790, or
could have been raised on direct appeal. For instance, this court already addressed
appellant's complaints that his trial counsel was deficient for eliciting testimony that he was
incarcerated during trial and for not seeking a curative instruction for the same. We found
these arguments to be without merit. See Casey I at ¶ 13. Appellant is therefore barred by
the doctrine of res judicata from raising and litigating these issues in his postconviction
proceedings.
{¶ 20} The doctrine of res judicata also bars review of appellant's Evid.R. 404(B)
claim. Whether trial counsel was ineffective for not objecting to or seeking to restrict the
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state's use of evidence that appellant previously sexually assaulted a minor was an issue
capable of being raised on direct appeal as resolution of the issue does not require or involve
evidence outside of the trial court record. The claim is therefore barred by res judicata. See
Perry, 10 Ohio St.2d at 180.
SVP Specification and Life Sentence of Incarceration
{¶ 21} Appellant's argument that he is entitled to postconviction relief due to trial
counsel's failure to explain or discuss the SVP specification and counsel's failure to inform
appellant that he faced a life term of incarceration if convicted of rape with the specification
are without merit. Even accepting as true appellant's contentions that his trial counsel failed
to discuss the SVP specification and failed to inform him of the potential penalty he faced if
convicted, appellant is unable to demonstrate he was prejudiced by these alleged
deficiencies. The record supports the trial court's finding that it advised appellant about the
nature and severity of the charges he faced, including the SVP specification, as well as the
potential sentences that accompanied the charges. On the eve of trial, the court continued to
advise appellant of the penalties he faced if convicted, stating:
THE COURT: [I]f [appellant] is found guilty of some of the
charges we are looking at a mandatory life in prison no discretion
of the Court, no possibility of parole. So we are taking about
essentially if [appellant] is convicted, he would spend the rest of
his life in prison.
***
Okay, and your understanding [is] that if you are convicted of
some of these crimes, uh the Court has no discretion in terms of
the sentence; if you are found guilty you will be basically be sent
to prison for life without the possibility of being released.
[Appellant]: Yeah.
THE COURT: Are you prepared to go forward with this?
[Appellant]: Yes, Your Honor, I am.
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{¶ 22} As appellant was advised of the SVP specification and of the fact that he faced
a sentence of life in prison if convicted, he cannot establish the prejudice prong of Strickland.
His claims, therefore, fail. See State v. Childs, 12th Dist. Butler No. CA2009-03-076, 2010-
Ohio-1814, ¶ 49 (noting that the failure to satisfy either the "performance" or "prejudice"
prong of Strickland is fatal to an ineffective assistance of counsel claim).
Discussion of Plea Offer
{¶ 23} Appellant's argument that he is entitled to postconviction relief due to trial
counsel's failure to advise him on whether or not he should accept a plea offered by the state
also fails. Pursuant to the offered plea, if appellant pled guilty to multiple rape charges, the
state would have dismissed the remaining charges and recommended an 18-year sentence,
rather than the mandatory indefinite sentence of 25 years to life in prison. Appellant rejected
the plea offer. In his affidavit in support of his petition for postconviction relief, appellant
asserted that "[t]rial counsel never advised me whether or not I should [have] accept[ed] the
State of Ohio's offer or if I should [have] present[ed] my case to trial."
{¶ 24} To establish ineffective assistance of counsel occurring during plea
negotiations, a defendant who did not accept a plea offer must show not only deficient
representation but also that there is a reasonable probability that (1) the defendant would
have accepted the plea offer, (2) the offer would not have been withdrawn and would have
been accepted by the trial court, and (3) that the conviction or sentence, or both, under the
plea would have been more favorable to the defendant. Lafler v. Cooper, 566 U.S. 156, 164,
132 S.Ct. 1376 (2012).
{¶ 25} The record demonstrates that the state's proposed plea deal was
communicated to appellant and appellant spoke with counsel about the plea offer. Appellant
rejected the offer, and trial counsel noted on the record, that
[i]n all my discussions with Mr. Casey, I can assure the Court that
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Mr. Casey does understand the gravity of the situation and he
understands what the potential penalties are. His position from
the beginning is that he would not plea[d] to something that he
did not do. Obviously, his constitutional presumption is that he is
innocent. Uh, he is maintaining that, doesn't see the need to
plead guilty to anything, any lesser type of charge or anything that
is negotiated with lesser time because he doesn't believe that he
committed any of these acts. Uh, we have discussed that and for
that reason there was no counteroffer.
{¶ 26} The record further demonstrates that the court discussed the plea offer with
appellant. After appellant rejected the plea offer, the court asked appellant, "[A]nd there
have been no, after discussing with your attorney there is no counter proposals that you
instructed him to make in terms of trying to resolve this case?" Appellant responded, "That is
correct, Your Honor."
{¶ 27} Although appellant believes trial counsel should have done more when
communicating the plea offer to him, appellant cannot establish that he would have accepted
the advice offered by counsel or that the trial court would have accepted the plea offer, even
if jointly presented by the parties. Appellant, therefore, cannot establish a claim of ineffective
assistance of counsel as it relates to the plea offer. See State v. Burton, 8th Dist. Cuyahoga
No. 100716, 2014-Ohio-4207, ¶ 13 (rejecting a claim of ineffective assistance of counsel for
the alleged failure to advise the defendant to accept an offered plea where the record
indicated the defendant was "not interested" in accepting a plea bargain).
Preparation for Trial, Limited Communication, and Trial Strategy
{¶ 28} Appellant also contends trial counsel was ineffective for failing to sufficiently
prepare for trial, for only meeting with him "three (3) times for a total of no more than forty-
five (45) minutes," for not giving him advance notice that he would be called in his own
defense at trial, for not discussing the nature of his testimony or the "benefits and detriments"
of testifying on one's own behalf, and for applying a "flawed trial strategy." Appellant
supported these contention with his own affidavit and the affidavit of an independent defense
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attorney who reviewed the record of the trial proceedings.
{¶ 29} Where a petitioner attaches affidavits in support of his petition for
postconviction relief, the trial court "should give due deference to [the] affidavits sworn to
under oath * * * but may, in the sound exercise of discretion, judge their credibility in
determining whether to accept the affidavits as true statements of fact." Calhoun, 86 Ohio
St.3d at 284. In determining the credibility, or lack thereof, of affidavits submitted in support
of a petition for postconviction relief, a court should consider
(1) whether the judge reviewing the postconviction relief petition
also presided at the trial, (2) whether multiple affidavits contain
nearly identical language, or otherwise appear to have been
drafted by the same person, (3) whether the affidavits contain or
rely on hearsay, (4) whether the affiants are relatives of the
petitioner, or otherwise interested in the success of the
petitioner's efforts, and (5) whether the affidavits contradict
evidence proffered by the defense at trial.
Id. at 285. "Depending on the entire record, one or more of these factors or other factors
may be sufficient to justify the conclusion that an affidavit asserting information outside the
record lacks credibility. Such a decision should be within the discretion of the trial court." Id.
{¶ 30} In the present case, the same judge who presided over the trial also reviewed
appellant's petition for postconviction relief. Therefore, though appellant claimed to have only
met with his attorney on three occasions in the six months that elapsed between trial counsel
being appointed and the case proceeding to trial, the court had knowledge of the multiple
pretrial hearings at which appellant appeared with his counsel. The court also had
knowledge of efforts counsel had taken to represent his client and to prepare for trial,
including opposing the state's motion to consolidate the cases for trial, requesting a bill of
particulars, and seeking to have statements the victim made to a children services' agency
turned over in discovery. The record, therefore, contradicts appellant's self-serving affidavit
and demonstrates trial counsel took substantial steps to investigate the case and prepare for
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trial. See, e.g., State v. King, 12th Dist. Butler Nos. CA2013-11-199 and CA2014-06-138,
2014-Ohio-5393, ¶ 19 (finding a defendant's claim that trial counsel was unprepared for trial
was not supported by the record where counsel filed a bill of particulars, demanded
discovery, and sought leave to file a motion to suppress).
{¶ 31} The record further contradicts appellant's statement that trial counsel failed to
discuss with him whether or not he should take the stand in his own defense. At trial,
appellant specifically stated he and trial counsel had discussed this issue. Prior to appellant
testifying, the following discussion was held:
[Trial Counsel]: Your Honor, I believe when we return, Mr. Larry
Casey himself wants to take the stand and testify on his own
behalf.
THE COURT: Okay. Mr. Casey, I don't often do this when a
Defendant indicates that he or she would like to testify, but I'm
going to at least advise you. You know, you do have a right to
remain silent. Anything you say obviously here in court could be
used against you, and you are presumed innocent of any
wrongdoing, and there is no requirement that you take the stand
and testify. If you do take the stand, you must answer questions
of the State of Ohio's prosecutor truthfully, do you understand
that?
[Appellant]: I do, Your Honor.
THE COURT: Have you gone over this issue as to whether or
not you should testify and give up your right to remain silent with
you attorney?
[Appellant]: Yes, sir, I have.
THE COURT: And after conferring [with] him, and talking to him,
uh, it is your intention to testify in this case?
[Appellant]: That's correct, Your Honor.
(Emphasis added.)
{¶ 32} Given the foregoing, it is clear that appellant did discuss the issue of testifying
at trial with his attorney and that he was apprised of the "detriments" of testifying on his own
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behalf. Trial counsel was not deficient merely because appellant chose to testify on his own
behalf. See, e.g., State v. Ryan, 6th Dist. Wood No. WD-05-064, 2006-Ohio-5120, ¶ 23-24
(noting that "whether or not a defendant testifies is a purely tactical decision" and that the
"ultimate decision of whether a defendant will testify on his own behalf is the defendant's").
See also State v. Bey, 85 Ohio St.3d 487, 499 (1999) (noting that a defendant's right to
testify or not testify on his own behalf is a personal right that only the defendant can waive).
Appellant's arguments that counsel provided ineffective assistance for not communicating
with him or not adequately preparing for trial are, therefore, without merit.
{¶ 33} As for appellant's claim that trial counsel applied a "flawed trial strategy," in his
defense of appellant, we note that "[t]he decision regarding which defense to pursue at trial is
a matter of trial strategy, and trial strategy decisions are not the basis of a finding of
ineffective assistance of counsel." State v. Kinsworthy, 12th Dist. Warren No. CA2013-06-
053, 2014-Ohio-1584, ¶ 43. Although appellant submitted an affidavit by a defense attorney
who stated he found trial counsel's strategy "so outside the realm of legitimate trial strategy
[that he] scoffed upon reading it," the defense attorney did not specifically identify any
alleged errors or flaws in trial counsel's strategy. Rather than identifying specific instances
where trial counsel's arguments or strategies fell below the wide range of professionally
competent assistance, the defense attorney used broad, general, and conclusory language in
his affidavit to note his disagreement with trial counsel's strategy. The defense attorney's
affidavit, therefore, does not provide support for appellant's claim of ineffective assistance of
counsel.
{¶ 34} Moreover, as the trial court noted when it rejected appellant's ineffective
assistance claim, "[t]he fact that another defense attorney may have employed a different
approach does not mean the alternative strategy fell below an objective standard of
reasonableness." "[T]here is a strong presumption that counsel has rendered adequate
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assistance and made all significant decisions in the exercise of reasonable professional
judgment." State v. Rowley, 12th Dist. Clinton No. CA2016-10-019, 2017-Ohio-5850, ¶ 62,
citing State v. Hendrix, 12th Dist. Butler No. CA2012-05-109, 2012-Ohio-5610, ¶ 14. Here,
the strategy employed by trial counsel resulted in the jury finding appellant not guilty on two
counts of rape and two counts of sexual battery. The fact that trial counsel's defense
strategy was unsuccessful as to other counts in the indictment does not mean counsel's
representation amounted to ineffective assistance. See State v. Murphy, 12th Dist. Butler
No. CA2009-05-128, 2009-Ohio-6745, ¶ 43 ("the fact that the trial strategy was ultimately
unsuccessful or that there was another possible and better strategy available does not
amount to ineffective assistance of counsel").
{¶ 35} Accordingly, for the reasons stated above, we conclude that the trial court did
not abuse its discretion in dismissing appellant's petition for postconviction relief without
holding an evidentiary hearing. Appellant's petition and the affidavits submitted in support of
said petition failed to contain sufficient operative facts to demonstrate a claim of ineffective
assistance of counsel. Appellant's first assignment of error is, therefore, overruled.
{¶ 36} Assignment of Error No. 2:
{¶ 37} APPELLANT WAS DENIED HIS FOURTEENTH AMENDMENT
CONSTITUTIONAL DUE PROCESS RIGHTS WHEN HIS TRIAL COURT JUDGE DID NOT
RECUSE HIMSELF FROM THE POSTCONVICTION PROCEEDINGS AFTER
INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS WERE RAISED AGAIN[ST] THE
TRIAL ATTORNEY HE HAD RECOMMENDED.
{¶ 38} In his second assignment of error, appellant argues the trial court judge erred
by not recusing himself from the postconviction relief proceedings because the judge
"recommended to [a]ppellant that he have [trial counsel] assigned to represent him."
Appellant contends that the judge was therefore "biased towards any proceedings which
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attacked the effectiveness" of trial counsel.
{¶ 39} "It is well settled that a judge who presided at trial will not be disqualified from
hearing a petition for postconviction relief in the absence of evidence of bias, prejudice, or a
disqualifying interest." In re Disqualification of Nastoff, 134 Ohio St.3d 1232, 2012-Ohio-
6339, ¶ 9. In the present case, appellant did not seek to have Judge John W. Rudduck
disqualified from proceeding over his petition for postconviction relief, as is permitted by R.C.
2701.03. Rather, appellant waited until his motion for postconviction relief was denied to
argue – for the first time on appeal – that Judge Rudduck should have recused himself from
the case as he was "biased."
{¶ 40} We find no evidence in the record to support appellant's assertion that Judge
Rudduck personally "recommended" appellant's trial counsel or that the judge was biased in
reviewing and ruling on the petition for postconviction relief. The record reveals that
appellant's trial counsel was appointed by a magistrate on June 26, 2015 after appellant
indicated he was indigent and unable to obtain his own representation. Therefore, contrary
to appellant's assertions, Judge Rudduck did not personally recommend trial counsel and he
did not have a disqualifying interest in determining the merits of the petition for postconviction
relief. Judge Rudduck was not required to sua sponte recuse himself from proceeding over
the petition for postconviction relief.
{¶ 41} Appellant's second assignment of error is, therefore, overruled.
{¶ 42} Assignment of Error No. 3:
{¶ 43} APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL COMPORTING WITH THE SIXTH AND
FOURTEENTH AMENDMENT.
{¶ 44} In his third assignment of error, appellant argues he received ineffective
assistance by his "appellate counsel," who in addition to representing appellant on his direct
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appeal in Casey I also filed appellant's petition for postconviction relief. Appellant argues his
appellate counsel was ineffective for (1) "failing to better argue that trial counsel was
ineffective for failing to competently implement a coherent trial strategy," (2) failing to prepare
an adequate strategy, (3) failing to argue that his trial counsel was ineffective for not
interviewing witnesses, and (4) failing to raise a Brady claim.
{¶ 45} To the extent that appellant is seeking to challenge the representation he
received by his appellate counsel while on direct appeal in Casey I, we find that his
arguments are not properly before us. The proper vehicle to raise the issue of ineffective
assistance of appellate counsel is through an application to reopen the appeal made
pursuant to App.R. 26(B). See State v. Teets, 4th Dist. Pickaway No. 15CA31, 2016-Ohio-
7274, ¶ 16. Appellant previously sought to reopen his appeal to raise the issue of ineffective
assistance of appellate counsel, and this court denied his request. See State v. Casey, 12th
Dist. Clinton Nos. CA2016-01-001 and CA2016-06-013 (Aug. 10, 2017) (Entry Denying
Application for Reopening) and State v. Casey, 12th Dist. Clinton Nos. CA2016-01-001 and
CA2016-06-013 (Nov. 8, 2017) (Entry Denying Motion to Establish Good Cause). Appellant
cannot circumvent our denial of his application to reopen his appeal by now raising
arguments relating to appellate counsel's alleged deficiencies on direct appeal.
{¶ 46} As for appellant's arguments that his appellate counsel provided ineffective
representation as it related to the filing of his petition for postconviction relief, we note that
the right to effective assistance of counsel guaranteed by the Sixth Amendment to the United
States Constitution "does not extend to state postconviction relief proceedings." State v.
McKelton, 12th Dist. Butler No. CA2015-10-183, 2016-Ohio-3216, ¶ 31. See also State v.
Wesson, 9th Dist. Summit No. 28412, 2018-Ohio-834, ¶ 10 ("there is no constitutional right to
the effective assistance of post-conviction counsel"); State v. Brown, 7th Dist. Mahoning No.
01 CA 229, 2003-Ohio-3551, ¶ 12 (finding the right to effective assistance of counsel "does
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not extend to civil post-conviction relief proceedings").
{¶ 47} In Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546 (1991), the
United States Supreme Court recognized that as "[t]here is no constitutional right to an
attorney in state post-conviction proceedings * * * a petitioner cannot claim constitutionally
ineffective assistance of counsel in such proceedings." The Supreme Court later recognized
a "narrow exception" to this general rule. In Martinez v. Ryan, 566 U.S. 1, 17, 132 S.Ct. 1309(2012), the Court held that
[w]here, under state law, claims of ineffective assistance of trial
counsel must be raised in an initial-review collateral proceeding, a
procedural default will not bar a federal habeas court from
hearing a substantial claim of ineffective assistance at trial if, in
the initial-review collateral proceeding, there was no counsel or
counsel in that proceeding was ineffective.
{¶ 48} To the extent that appellant relies on Martinez to support his claim of
ineffective assistance of his postconviction counsel, we note that Martinez "address[es]
ineffective assistance in the context of what may constitute cause to excuse a procedural
default in a federal habeas case." Wesson, 2018-Ohio-834 at ¶ 10. It does not affect our
analysis under Ohio's statutory postconviction procedures. See id., citing State v. Jackson,
149 Ohio St.3d 55, 2016-Ohio-5488, ¶ 104 ("Martinez is directed toward federal habeas
proceedings and is intended to address issues that arise in that context"). See also State v.
Waddy, 10th Dist. Franklin No. 15AP-397, 2016-Ohio-4911, ¶ 63 (recognizing that the
procedural default doctrine discussed in Martinez, "while applicable to federal habeas corpus
proceedings, does not apply to state post-conviction relief proceedings"); State v. Boles, 12th
Dist. Brown No. CA2016-07-014, 2017-Ohio-786, ¶ 23-31.
{¶ 49} Accordingly, as the right to effective assistance of counsel does not extend to
state postconviction relief proceedings, appellant cannot maintain a claim of constitutionally
ineffective assistance by his postconviction counsel. Appellant's arguments are without merit
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and his third assignment of error is, therefore, overruled.
{¶ 50} Judgment affirmed.
S. POWELL, P.J., and PIPER, J., concur.
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