State v. Jones ( 2011 )

[Cite as State v. Jones, 2011-Ohio-6215.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-11-06
v.
TIMOTHY ALLEN JONES, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 09CR0066
Judgment Affirmed
Date of Decision: December 5, 2011
APPEARANCES:
Timothy Allen Jones, Appellant
Brent W. Yager and Gregory A. Perry for Appellee
Case No. 9-11-06
SHAW, J.
{¶1} Jones appeals the February 10, 2011 judgment of the Marion County
Court of Common Pleas overruling his petition for postconviction relief.
{¶2} On April 16, 2009, Jones was indicted on one charge of felonious
assault for beating another inmate, Joshua Criswell, while Jones was incarcerated
for domestic violence charges. Criswell’s spleen was ruptured as a result of the
attack. The incident was recorded on the surveillance cameras in the jail and
Criswell’s injuries were documented and treated by the jail nurse and other
medical personnel. The indictment was later amended to include a repeat violent
offender specification.
{¶3} On January 11, 2010, after being convicted by a jury, the trial court
sentenced Jones to a prison term of eight years for the felonious assault conviction
and designated him as a repeat violent offender, which added four years to his
sentence, for a total twelve-year prison term. Jones appealed the judgment
imposing his conviction and sentence to this Court, raising seven assignments of
error. The assignments of error claimed that the trial court erred in overruling
some of Jones’ pretrial motions, challenged the adequacy of the evidence before
the jury and the trial court to convict him, alleged that trial court permitted the jury
to hear inadmissible evidence during the trial, and asserted that Jones was
deprived of effective assistance of counsel.
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{¶4} On June 23, 2010, Jones filed a petition for postconviction relief
alleging that his trial counsel provided him ineffective assistance of counsel.
{¶5} On October 4, 2010, this Court overruled Jones’ seven assignments of
error and affirmed the judgment of the trial court.
{¶6} On December 22, 2010, Jones, without permission for leave from the
trial court, filed an amended petition for postconviction relief raising two
additional grounds for relief, which included an allegation that the prosecution
failed to preserve exculpatory evidence.
{¶7} On February 8, 2011, the prosecution filed its response to Jones’
petition for postconviction relief.
{¶8} On February 10, 2011, the trial court ruled on Jones’ petition for
postconviction relief. In a thorough opinion, the trial court addressed each of
Jones’ supporting grounds and overruled the petition finding it not well-taken.
Specifically, the trial court determined that Jones’ claims were barred by res
judicata.
{¶9} Jones subsequently appealed the decision of the trial court overruling
his petition for postconviction relief, raising the following assignments of error.1
1
We note that Jones submitted two briefs on appeal. His first brief was submitted on July 7, 2011, raising
six assignments of error. However, this Court did not accept Jones’ first brief because it exceeded the local
page limit rule. Jones filed his second brief on July 27, 2011, amending his brief to raise just three
assignments of error. The prosecution filed its brief on August 18, 2011, responding to the six assignments
of error in Jones’ first brief. However, we will only address the three assignments of error raised by Jones
in his second brief, which is the one that was properly filed in accordance with the local and appellate rules.
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Case No. 9-11-06
ASSIGNMENT OF ERROR NO. I
ATTORNEY JAVIER ARMENGAU WAS INEFFECTIVE AS
COUNSEL IN THAT HE REFUSED TO OBTAIN AND
SECURE VIDEO EVIDENCE FROM THE SECURITY
CAMERA SYSTEM AT THE MULTI COUNTY
CORRECTION CENTER OF THE ALLEGED VICTIM
JUSHUA [SIC] CHRISWELL [SIC] BODY PUNCHING WITH
AND BEING ASSAULTING BY OTHER INMATES IN THE
DAYS PRIOR TO THE INCIDENT INVOLVING THE
APPELLANT.
ASSIGNMENT OF ERROR NO. II
PROSECUTING ATTORNEY BRENT YAGER FAILED TO
PRESERVE EXCULPATORY EVIDENCE OR, IN BAD
FAITH, FAILED TO PRESERVE FOR TRIAL
POTENTIALLY USEFUL EVIDENCE AND DISCLOSE IT
TO THE APPELLANT AFTER HE WAS MADE FULLY
AWARE OF ITS EXISTENCE.
ASSIGNMENT OF ERROR NO. III
ATTORNEY JON DOYLE WAS INEFFECTIVE AS
COUNSEL IN THAT HE (A) FAILED THROUGH THE
PROCESS OF DISCOVERY, TO OBTAIN THE MEDICAL
RECORDS OF JOSHUA CHRISWELL [SIC] FROM THE
MULTI-COUNTY CORRECTIONAL CENTER. (B) FAILED
TO DISCOVER THAT JOSHUA CHRISWELL [SIC] WAS
INFACT [SIC], BEING TREATED BY THE DOCTOR AT
THE MULTI-COUNTY CORRECTIONAL CENTER FOR A
STOMACH PROBLEM ONE DAY PRIOR TO THE
ALLEGED ASSAULT BY THE APPELLANT AND (C)
FAILED TO SUBPOENA THE DOCTOR FROM THE
MULTI-COUNTY CORRECTIONAL CENTER WHO
TREATED JOSHUA CHRISWELL [SIC] FOR A STOMACH
PROBLEM AS A WITNESS FOR THE APPELLANT.
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Case No. 9-11-06
{¶10} For ease of discussion, we elect to address some of the assignments
of error together.
The First and Second Assignments of Error
{¶11} The first and second assignments of error both relate to Jones’
contention that he could have been exonerated if certain surveillance video from
the jail would have been preserved. Jones alleges that this particular evidence
depicted the victim, Joshua Criswell, engaging in “body punching” with other
inmates days before Jones’ attack on Criswell. Jones claims that his initial trial
counsel provided him ineffective assistance of counsel because he failed to obtain
this evidence before the jail taped over the video.2 Jones also claims that the
prosecution acted in bad faith when it failed to preserve this evidence.
{¶12} The Supreme Court of Ohio has previously held that “[u]nder the
doctrine of res judicata, a final judgment of conviction bars the convicted
defendant 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 that resulted in that judgment of
conviction or on an appeal from that judgment.” State v. Perry (1967), 10 Ohio
St.2d 175, 180, 226 N.E.2d 104. (Emphasis added). It is well established that res
2
During the course of the court proceedings, Jones had two different court-appointed attorneys. His initial
attorney in the case was Attorney Armengau. Jones asked him to withdraw from his representation early in
the case. The trial court subsequently appointed Attorney Doyle to represent Jones.
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judicata bars the consideration of issues that could have been raised on direct
appeal. State v. Saxon, 109 Ohio St.3d 176, 2006–Ohio–1245, 846 N.E.2d 824, at
¶ 16–17.
{¶13} Jones was represented by appellate counsel in the direct appeal of the
judgment imposing his conviction and sentence. In addition to the assignments of
error raised by Jones’ appellate counsel, Jones was permitted to submit a
supplemental brief in which he raised and argued four additional assignments of
error. Despite having ample opportunity, none of Jones’ assignments of error
discuss the issue now raised by Jones regarding this surveillance video. In
addition, Jones has failed to provide any reason why he was unable to properly
raise these arguments in his first appeal. Accordingly, because Jones could have
raised this matter in his direct appeal of the judgment imposing his conviction and
sentence but chose not to, we find that the trial court did not err in concluding that
his claims are now barred by res judicata.
{¶14} Moreover, we note that Jones and his trial counsel argued the defense
that Criswell’s spleen injury was caused by the roughhousing Criswell allegedly
engaged in with other inmates days prior to Jones’ attack. Even though Jones did
not have the surveillance video, he presented the testimony of three inmates at his
trial, who either engaged in or witnessed the “body punching” of Criswell. In the
end, the jury determined that Jones, not the actions of other inmates, caused
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Case No. 9-11-06
Criswell’s injuries based on the medical evidence presented as well as Criswell’s
own testimony denying that the roughhousing caused his spleen injury. Clearly,
this surveillance video would have been simply cumulative to the evidence
presented by Jones at his trial. For all these reasons, Jones’ first and second
assignments of error are overruled.
The Third Assignment of Error
{¶15} In the third assignment of error, Jones argues that his trial counsel,
Attorney Doyle, was ineffective for allegedly failing to obtain the medical records
kept by the jail and other evidence which Jones claims demonstrated that Criswell
had been taking Zantac, a medication for heartburn and indigestion, around the
time his spleen was ruptured.
{¶16} In his direct appeal of the judgment imposing his conviction and
sentence, Jones raised this same issue in his fifth assignment of error and we
determined that Jones’ arguments amounted to mere speculation and did not
substantiate a claim of ineffective assistance of counsel. See State v. Jones I, 3rd
Dist. No. 9-10-09, 2010-Ohio-4823. Because Jones has previously litigated this
issue in the direct appeal of his conviction, we conclude that the trial court did not
err in finding that his claim is now barred by res judicata. Jones’ third assignment
of error is overruled.
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{¶17} Based on the foregoing, the judgment of Marion County Court of
Common Pleas is affirmed.
Judgment Affirmed
ROGERS, P.J. and PRESTON, J., concur.
/jlr
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