State v. Croom ( 2014 )

[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
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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
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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).
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{¶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
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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
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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
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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.