State v. Croom ( 2014 )


Menu:
  • [Cite as State v. Croom, 
    2014-Ohio-5635
    .]
    STATE OF OHIO, MAHONING COUNTY
    IN THE COURT OF APPEALS
    SEVENTH DISTRICT
    STATE OF OHIO                                )    CASE NO. 13 MA 98
    )
    PLAINTIFF-APPELLEE                   )
    )
    VS.                                          )    OPINION
    )
    STANLEY CROOM                                )
    )
    DEFENDANT-APPELLANT                  )
    CHARACTER OF PROCEEDINGS:                         Criminal Appeal from the Court of
    Common Pleas of Mahoning County,
    Ohio
    Case No. 10 CR 35
    JUDGMENT:                                         Affirmed.
    APPEARANCES:
    For Plaintiff-Appellee:                           Atty. Paul J. Gains
    Mahoning County Prosecutor
    Atty. Ralph M. Rivera
    Assistant Prosecuting Attorney
    21 West Boardman Street, 6th Floor
    Youngstown, Ohio 44503
    For Defendant-Appellant:                          Stanley Croom, Pro se
    #622-982A
    Mansfield Correctional Institution
    P.O. Box 788
    Mansfield, Ohio 44901
    JUDGES:
    Hon. Cheryl L. Waite
    Hon. Gene Donofrio
    Hon. Joseph J. Vukovich
    Dated: December 19, 2014
    [Cite as State v. Croom, 
    2014-Ohio-5635
    .]
    WAITE, J.
    {¶1}    Appellant Stanley Croom appeals the dismissal of his pro se petition for
    postconviction relief filed in the Mahoning County Court of Common Pleas. The
    petition was dismissed without a hearing. Appellant contends that a hearing should
    have been granted to investigate four alleged errors made during the trial. Appellant
    refers only to issues that could have been or were resolved in direct appeal. Since
    none of these errors, even if proven, could result in the court granting the petition, no
    hearing was needed prior to denying the petition. The trial court properly denied the
    petition without a hearing, and the judgment of the trial court is affirmed.
    Factual and Procedural History
    {¶2}    The facts of this case are thoroughly reviewed in the direct appeal of
    Appellant's conviction and sentence. State v. Croom, 7th Dist. No. 12 MA 54, 2013-
    Ohio-5682 (“Croom I”). Appellant and co-defendant Jeffrey Shorter were indicted by
    the Mahoning County Grand Jury in connection with a robbery at a Belleria pizza
    location in Youngstown.             The indictment also contained counts of attempted
    aggravated murder and retaliation in connection with Appellant's efforts to murder a
    key witness in the robbery case. The case went to trial and Appellant was convicted
    of aggravated robbery, attempted aggravated murder, retaliation and having a
    weapon while under a disability. The court sentenced Appellant to eleven years in
    prison for attempted aggravated murder, three years for the repeat violent offender
    specification, ten years for aggravated robbery, three years for the firearm
    specification, and three years for having a weapon under disability, for an aggregate
    sentence of thirty years.          The retaliation count was merged into the attempted
    -2-
    aggravated murder count. Appellant filed a direct appeal, raising eight assignments
    of error. On December 13, 2013, we reversed the conviction for having weapons
    under a disability but affirmed all the remaining convictions and sentences. Croom I
    at ¶175.
    {¶3}   Appellant's postconviction petition was filed on January 14, 2013. The
    trial court denied the petition on January 17, 2013. Appellant filed a direct appeal,
    which was dismissed due to lack of final appealable order. The trial court issued a
    revised ruling denying the petition on June 5, 2013, and it is the later ruling now on
    appeal.
    ASSIGNMENT OF ERROR
    THE TRIAL COURT ABUSED IT[sic] DISCRETION WHEN IT DID NOT
    GRANT APPELLANT’S REQUEST FOR EVIDENTARY[sic] HEARING
    TO REVIEW THE VIDEO DISC IN CASE NO. 10 CR 720 IN
    COMPARISON TO APPELLANT[sic] CASE
    {¶4}   Appellant filed a “Petition to Vacate or Set Aside Judgment of
    Conviction or Sentence.” Based on the nature and contents of the petition, it was
    treated by the trial court and now, on appeal, as a petition for postconviction relief as
    defined in R.C. 2953.21. See State v. Reynolds, 
    79 Ohio St.3d 158
    , 160, 
    679 N.E.2d 1131
     (1997). Although Appellant's assignment of error purportedly raises an issue
    regarding a video disc, almost none of the argument on appeal pertains to this
    supposed evidence. In addition, he did not produce the video for the trial court to
    review in support of his petition, and it is not even clear what significance the alleged
    -3-
    video would have in this case. While we will return to the question of the supposed
    video, Appellant's actual argument on appeal relates to errors regarding DNA
    evidence, an alleged misstatement by the trial judge, and the credibility of witnesses
    at trial. For the following reasons, we reject these arguments.
    {¶5}   A defendant convicted of a criminal offense who alleges the denial of a
    constitutional right at trial may seek postconviction relief pursuant to R.C.
    2953.21(A)(1)(a). This type of petition is a civil proceeding attacking the validity of
    the criminal judgment. State v. Milanovich, 
    42 Ohio St.2d 46
    , 49, 
    325 N.E.2d 540
    (1975). A trial court will review the petition and any supporting documents, along with
    the record of proceedings, to determine if there are substantive grounds for relief
    before dismissing a petition. R.C. 2953.21(C).
    {¶6}   The mere filing of a petition for postconviction relief does not
    automatically guarantee that the petitioner will receive a hearing on the matter.
    “Before a hearing is granted, the petitioner bears the initial burden in a post-
    conviction proceeding to submit evidentiary documents containing sufficient operative
    facts to demonstrate” that he is entitled to relief. State v. Jackson, 
    64 Ohio St.2d 107
    , 111, 
    413 N.E.2d 819
     (1980). “[T]he court shall determine whether there are
    substantive grounds for relief” before a hearing may be granted. R.C. 2953.21(C).
    The court must first determine whether there is reason to believe 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[.]” R.C.
    2953.21(A)(1)(a); State v. Cole, 
    2 Ohio St.3d 112
    , 
    443 N.E.2d 169
     (1982).
    -4-
    {¶7}   The doctrine of res judicata applies to postconviction relief proceedings.
    State v. Perry, 
    10 Ohio St.2d 175
    , 
    226 N.E.2d 104
     (1967), paragraph eight of the
    syllabus. This doctrine bars an individual from raising a defense or claiming a lack of
    due process that was or could have been raised at trial or on direct appeal. State v.
    Ishmail, 
    67 Ohio St.2d 16
    , 18, 
    423 N.E.2d 1068
     (1981). The doctrine of res judicata
    also bars claims that are unsupported by evidence outside of the original record.
    State v. Combs, 
    100 Ohio App.3d 90
    , 97, 
    652 N.E.2d 205
     (1994). “ 'To overcome the
    res judicata bar, evidence offered dehors the record must demonstrate that the
    petitioner could not have appealed the constitutional claim based upon information in
    the original record.' ” State v. Clark, 7th Dist. No. 06 MA 26, 
    2007-Ohio-2707
    , ¶14,
    quoting State v. Lawson, 
    103 Ohio App.3d 307
    , 315, 
    659 N.E.2d 362
     (12th
    Dist.1995).
    {¶8}   “Appellate review of a trial court’s disposition of a petition for
    postconviction relief is a hybrid, presenting mixed questions of law and fact.” State v.
    Green, 7th Dist. No. 02 CA 35, 
    2003-Ohio-5142
    , ¶27. “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.” State
    v. Mitchell, 
    53 Ohio App.3d 117
    , 119, 
    559 N.E.2d 1370
     (8th Dist.1988). An abuse of
    discretion connotes more than an error of judgment; it implies that the court’s attitude
    is unreasonable, arbitrary, or unconscionable. State v. Adams, 
    62 Ohio St.2d 151
    ,
    157, 
    559 N.E.2d 1370
     (1988).
    {¶9}   Appellant first argues that the trial judge made incorrect assertions
    about DNA evidence that contradicted expert witness testimony, and that the trial
    -5-
    judge could not present facts at trial as if he were an expert witness. Appellant cites
    Evid.R. 702(B) in support.       Evidentiary rulings about expert witness testimony
    concerning DNA evidence is a matter that can be reviewed on direct appeal. In fact,
    Appellant did raise questions about the DNA evidence in his direct appeal. Croom I
    at ¶90-91. Therefore, these arguments could have been made in the direct appeal
    and are now res judicata. The trial judge did not need to have an evidentiary hearing
    on the petition for postconviction relief to resolve this issue. Further, Appellant does
    not attempt to connect this alleged error, or anything else in his petition or in this
    appeal, to any violation of a constitutional right. Without an allegation and some
    proof that a constitutional right was violated, there was no reason for the court to
    schedule a hearing, much less grant the petition.
    {¶10} Appellant's second argument is that the trial court misspoke when the
    judge stated that Jeffrey Shorter was never called to the stand to testify. Whether or
    not Shorter was called to testify is a matter that can only be proven by reference to
    the record as it existed at the time of direct appeal, and as such, is res judicata for
    purposes of postconviction relief and cannot be reviewed here. Postconviction relief
    has to do with evidence that was not and could not be produced at trial, evidence
    dehors the record, and any argument relying solely on evidence that was part of the
    trial would necessarily fail.   Once again, the trial court had no reason to hold a
    hearing regarding a question that could not form the basis for relief.
    {¶11} Appellant's remaining two arguments relate to the credibility of
    witnesses. Appellant believes that the witness MyLinda Seamans misidentified him
    when she described the robber, and that witness Robert Levitsky gave untruthful
    -6-
    testimony. Whether or not either of these witnesses could be believed was a matter
    for the trier of fact to determine, and would be part of an assignment of error on
    appeal dealing with the manifest weight of the evidence. Appellant raised a manifest
    weight of the evidence assignment of error in his direct appeal, and it was rejected.
    Croom I at ¶63-95. Since these matters could have been raised on direct appeal,
    they are now res judicata and would not serve as a reason for the trial court to grant
    a hearing on the petition for postconviction relief. See State v. Damron, 4th Dist. No.
    10CA3158, 
    2010-Ohio-6459
    , ¶21 (postconviction manifest weight argument is barred
    by res judicata because it could have been raised in the direct appeal).
    {¶12} Finally, we must comment on Appellant's reference to possible security
    video evidence that he somehow now believes constitutes a basis for requiring an
    evidentiary hearing on his petition. Appellant refers to security camera video both of
    the robbery of Belleria Pizza and video from a separate robbery of a Walgreens Drug
    Store. The security video of the robbery was available to Appellant prior to and
    during his trial, and he referred to the content of the video in his direct appeal,
    particularly with respect to his manifest weight of the evidence argument. Croom I at
    ¶75-80.   Whether or not there is additional video of Appellant or someone else
    committing a second crime at Walgreens cannot alter the evidence presented against
    him in this case.   Appellant is basically challenging the weight of the evidence
    identifying him as the person who attempted to rob Belleria Pizza.            MyLinda
    Seamans, a Belleria employee, identified Appellant. She identified him in a photo
    lineup and in the courtroom. She identified the gloves he was wearing when he
    committed the crime. He was identified by his coat, by his vehicle, by his height and
    -7-
    weight, and by the fact that he had no facial hair. The gloves were recovered from
    his vehicle when Appellant was arrested and had his DNA on them. As Appellant is
    well aware, he was also recorded on Belleria's security camera video. Appellant is
    essentially raising a different manifest weight of the evidence argument here than the
    one he raised on direct appeal, an argument based in part on a video he did not
    produce in support of his petition and that he cannot show or even describe as being
    relevant to any constitutional violation. There is nothing in Appellant's discussion of
    these videos that could possibly require the trial court to hold a hearing on his
    petition. Therefore, no error has been established. For all of these reasons, we
    overrule Appellant's assignment of error.
    Conclusion
    {¶13} Appellant’s request for an evidentiary hearing in response to his petition
    to vacate his conviction and sentence was properly denied because he did not
    present substantive grounds for relief. There was no error in the trial court's decision
    to deny the petition without a hearing, and the trial court's judgment is affirmed.
    Donofrio, J., concurs.
    Vukovich, J., concurs.
    

Document Info

Docket Number: 13 MA 98

Judges: Waite

Filed Date: 12/19/2014

Precedential Status: Precedential

Modified Date: 12/31/2014