State v. McDougald , 2016 Ohio 5080 ( 2016 )

[Cite as State v. McDougald, 2016-Ohio-5080.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, : Case No. 16CA3736
Plaintiff-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
JERONE MCDOUGALD, :
RELEASED: 7/15/2016
Defendant-Appellant. :
APPEARANCES:
Jerone McDougald, Lucasville, OH, pro se appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay S. Willis, Scioto County
Assistant Prosecuting Attorney, Portsmouth, OH, for appellee.
Harsha, J.
{¶1} Jerone McDougald appeals the judgment denying his fifth petition for
postconviction relief and his motion for leave to file a motion for new trial. McDougald
contends that the court erred in denying his petition, which raised claims of ineffective
assistance of his trial counsel. He additionally argues that the court erred in denying his
motion for leave to file a motion for new trial, but did not assign any errors regarding this
decision.
{¶2} We reject McDougald’s claims. He failed to demonstrate the requirements
necessary for the trial court to address the merits of his untimely claims in his fifth
petition for postconviction relief. Moreover, res judicata barred this successive petition
because he could have raised these claims on direct appeal or in one of his earlier
postconviction petitions. Finally, because he failed to assign any error regarding the
trial court’s denial of his motion for leave to file a motion for new trial, we need not
address his arguments regarding that decision.
Scioto App. No. 16CA3736 2
{¶3} Therefore, we affirm the judgment of the trial court denying his petition and
motion.
I. FACTS1
{¶4} Authorities searched a premises in Portsmouth and found crack cocaine,
money, digital scales, and a pistol. They arrested the two occupants of the residence,
McDougald and Kendra White, at the scene. Subsequently, the Scioto County Grand
Jury returned an indictment charging McDougald with drug possession, drug trafficking,
possession of criminal tools, and the possession of a firearm while under disability.
McDougald pleaded not guilty to all charges.
{¶5} At the jury trial Kendra White testified that McDougald used her home to
sell crack cocaine and that she sold drugs on his behalf as well. She also testified that
the digital scales belonged to McDougald and, although the pistol belonged to her ex-
boyfriend, Benny Simpson (who was then incarcerated), McDougald asked her to bring
it inside the home so that he would feel more secure. White explained that Simpson
previously used the pistol to shoot at her, but threw it somewhere in the backyard when
he left. Simpson then allegedly called White from jail and instructed her to retrieve the
pistol. White complied and then hid it “under the tool shed” until McDougald instructed
her to retrieve it and bring it inside the house. White confirmed that she saw
McDougald at the premises with the gun on his person.
{¶6} Jesse Dixon and Melinda Elrod both testified that they purchased crack
cocaine from McDougald at the residence. Shawna Lattimore testified that she served
1Except where otherwise noted, these facts are taken from our opinion in State v. McDougald, 4th Dist.
Scioto Nos. 14CA3649 and 15CA3679, 2015-Ohio-5590, appeal not accepted for review, State v.
McDougald, 144 Ohio St.3d 147, 2016-Ohio-467, 845 N.E.3d 245.
Scioto App. No. 16CA3736 3
as a “middleman” for McDougald's drug operation and also helped him transport drugs
from Dayton. She testified that she also saw McDougald carry the pistol.
{¶7} The jury returned guilty verdicts on all counts. The trial court sentenced
McDougald to serve five years on the possession count, nine years for trafficking, one
year for the possession of criminal tools, and five years for the possession of a firearm
while under disability. The court ordered the sentences to be served consecutively for a
total of twenty years imprisonment. The sentences were included in a judgment entry
filed April 30, 2007, as well as a nunc pro tunc judgment entry filed May 16, 2007.
{¶8} In McDougald's direct appeal, where he was represented by different
counsel than his trial attorney, we affirmed his convictions and sentence. State v.
McDougald, 4th Dist. Scioto No. 07CA3157, 2008-Ohio-1398. We rejected
McDougald's contention that because the only evidence to link him to the crimes was
“the testimony of admitted drug addicts and felons,” the verdicts were against the
manifest weight of the evidence:
* * * appellant's trial counsel skillfully cross-examined the prosecution's
witnesses as to their statuses as drug addicts and convicted felons.
Counsel also drew attention to the fact that some of the witnesses may
actually benefit from the testimony that they gave. That evidence
notwithstanding, the jury obviously chose to believe the prosecution's
version of the events. Because the jury was in a better position to view
those witnesses and determine witness credibility, we will not second-
guess them on these issues.
Id. at ¶ 8, 10.
{¶9} In January 2009, McDougald filed his first petition for postconviction relief.
He claimed that he was denied his Sixth Amendment right to confrontation when the
trial court admitted a drug laboratory analysis report into evidence over his objection.
Scioto App. No. 16CA3736 4
The trial court denied the petition, and we affirmed the trial court's judgment. State v.
McDougald, 4th Dist. Scioto No. 09CA3278, 2009-Ohio-4417.
{¶10} In October 2009, McDougald filed his second petition for postconviction
relief. He again claimed that he was denied his Sixth Amendment right of confrontation
when the trial court admitted the drug laboratory analysis report. The trial court denied
the petition, and McDougald did not appeal the judgment.
{¶11} In July 2014, McDougald filed his third petition for postconviction relief.
He claimed that: (1) the trial court lacked jurisdiction to convict and sentence him
because the original complaint filed in the Portsmouth Municipal Court was based on
false statements sworn to by the officers; (2) the prosecuting attorney knowingly used
and relied on false and perjured testimony in procuring the convictions against him; and
(3) the state denied him his right to due process by withholding exculpatory evidence,
i.e., a drug task force report. McDougald attached the report, the municipal court
complaints, a portion of the trial transcript testimony of Kendra White, his request for
discovery, and the state's answer to his request for discovery to his petition. The trial
court denied the petition because it was untimely and did not fall within an exception
justifying its late filing. McDougald appealed from the trial court's judgment denying his
third petition for postconviction relief.
{¶12} In December 2014, McDougald filed his fourth petition for postconviction
relief. He claimed that his sentence is void because the trial court never properly
entered a final order in his criminal case. The trial court denied the petition. McDougald
appealed from the trial court's judgment denying his fourth petition for postconviction
relief.
Scioto App. No. 16CA3736 5
{¶13} We consolidated the appeals and affirmed the judgments of the trial court
denying his third and fourth petitions for postconviction relief. McDougald, 2015-Ohio-
5590. We held that McDougald failed to establish the requirements necessary for the
trial court to address the merits of his untimely claims and that res judicata barred the
claims because he either raised them on direct appeal or could have raised them on
direct appeal or in one of his previous petitions for postconviction relief. Id.{¶14} In November 2015, over eight and one-half years after he was sentenced,
McDougald filed his fifth petition for postconviction relief. He argued that his trial
counsel had provided ineffective assistance by failing to conduct an independent
investigation of various matters, failing to use preliminary hearing testimony of the
arresting officer to impeach the state’s case, failing to emphasize Kendra White’s prior
statements to the police to impeach her testimony, failing to object to the arresting
officer’s testimony that the firearm found at the scene was operable and had a clip and
bullets, and failing to counter the state’s response to his objection concerning testimony
about an Ohio Bureau of Criminal Investigation (“BCI”) report with evidence that the BCI
employee had been timely subpoenaed.
{¶15} In December 2015, McDougald filed a motion for leave to file a motion for
new trial. He claimed that the state withheld a drug task force report that contained
strong exculpatory evidence and that the report proved that the state presented false
and perjured testimony at trial.
{¶16} After the state responded, the trial court denied the petition and the
motion, and this appeal ensued.
II. ASSIGNMENTS OF ERROR
Scioto App. No. 16CA3736 6
{¶17} McDougald assigns the following errors for our review:
1. Defendant was prejudiced by trial counsel’s failure to conduct
independent investigation to rebut state’s theory of prior acts of the
defendant or ask for a mistrial prejudicing defendant’s trial.
2. Defendant was prejudiced by trial counsel’s failure to conduct
independ[e]nt investigation and failed to present that the prosecutor
knowingly used false and fabricated testimony concerning the gun in
violation of defendant[’]s due process prejudicing defendant[’]s trial.
3. Defendant was prejudiced by trial counsel[’]s failure to conduct
independent investigation and failed to present that the state knowingly
used false and fabricated evidence in violation of defendant’s due process
rights and prejudicing defendant’s trial.
4. Defendant was prejudiced by trial counsel’s failure to conduct
independent investigation and failed to present that the arresting officer[’]s
conduct in admitting and establishing the op[]erability of the f[i]rearm
violat[ed] defendant’s due process rights and also evidence [rule] 702-703.
5. Defendant was prejudiced by trial counsel’s failure to raise that BCI tech
was subpoenaed within the 7 day requirement pursuant to R.C.
2925.51(C) prejudicing defendant’s 6th amendment rights to confrontation.
Trial attorney was ineffective in this regard.
III. STANDARD OF REVIEW
{¶18} McDougald’s assignments of error contest the trial court’s denial of his fifth
petition for postconviction relief.
{¶19} The postconviction relief process is a collateral civil attack on a criminal
judgment rather than an appeal of the judgment. State v. Calhoun, 86 Ohio St.3d 279,
281, 714 N.E.2d 905 (1999). Postconviction relief is not a constitutional right; instead, it
is a narrow remedy that gives the petitioner no more rights than those granted by
statute. Id. It is a means to resolve constitutional claims that cannot be addressed on
direct appeal because the evidence supporting the claims is not contained in the record.
State v. Knauff, 4th Dist. Adams No. 13CA976, 2014-Ohio-308, ¶ 18.
Scioto App. No. 16CA3736 7
{¶20} “[A] trial court's decision granting or denying a postconviction relief petition
filed pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion; a
reviewing court should not overrule the trial court's finding on a petition for
postconviction relief that is supported by competent and credible evidence.” State v.
Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. A trial court abuses
its discretion when its decision is unreasonable, arbitrary, or unconscionable. In re H.
V., 138 Ohio St.3d 408, 2014-Ohio-812, 7 N.E.3d 1173, ¶ 8.
IV. LAW AND ANALYSIS
A. Fifth Petition for Postconviction Relief
{¶21} In his five assignments of error McDougald asserts that his trial counsel
was ineffective for failing to investigate his case and failing to take certain actions during
his jury trial.
{¶22} R.C. 2953.21(A)(2) provides that a petition for postconviction relief must
be filed “no later than three hundred sixty-five days after the expiration of the time for
filing the appeal.” McDougald’s fifth petition for postconviction relief was filed over eight
years after the expiration of time for filing an appeal from his convictions and sentence
so it was untimely. See, e.g., State v. Heid, 4th Dist. Scioto No. 15CA3710, 2016-Ohio-
2756, ¶ 15.
{¶23} R.C. 2953.23(A)(1) authorizes a trial court to address the merits of an
untimely filed petition for postconviction relief only if: (1) the petitioner shows either that
he was unavoidably prevented from discovery of the facts upon which he must rely to
present the claim for relief or that the United States Supreme Court recognized a new
federal or state right that applies retroactively to him; and (2) the petitioner shows by
Scioto App. No. 16CA3736 8
clear and convincing evidence that no reasonable factfinder would have found him guilty
but for constitutional error at trial.
{¶24} McDougald does not contend that the United States Supreme Court
recognized a new right that applied retroactively to him, so he had to prove that he was
unavoidably prevented from the discovery of the facts upon which he relied to present
his ineffective-assistance-of-counsel claim. “A defendant is ‘unavoidably prevented’
from the discovery of facts if he had no knowledge of the existence of those facts and
could not have, in the exercise of reasonable diligence, learned of their existence within
the time specified for filing his petition for postconviction relief.” State v. Cunningham,
3d Dist. Allen No. 1-15-61, 2016-Ohio-3106, ¶ 19, citing State v. Holnapy, 11th Dist.
Lake No. 2013-L-002, 2013-Ohio-4307, ¶ 32, and State v. Roark, 10th Dist. Franklin No.
15AP-142, 2015-Ohio-3206, ¶ 11.
{¶25} The only “new” evidence cited by McDougald in his petition for
postconviction relief consisted of an excerpt from the arresting officer’s preliminary
hearing testimony, a subpoena issued to a BCI employee, and a CD of Kendra White’s
police interview following her arrest. He does not explain how either he or his appellate
counsel were unavoidably prevented from having access to this evidence at the time he
filed his direct appeal. Nor does he indicate how he was unavoidably prevented from
discovering them before he filed any of his previous four petitions for postconviction
relief. “Moreover, ‘[t]he fact that appellant raises claims of ineffective assistance of
counsel suggests that the bases for his claims could have been uncovered if
“reasonable diligence” had been exercised.’ ” Cunningham, 2016-Ohio-3106, at ¶ 22,
quoting State v. Creech, 4th Dist. Scioto No. 12CA3500, 2013-Ohio-3791, ¶ 18.
Scioto App. No. 16CA3736 9
Therefore, McDougald did not establish that the trial court possessed the authority to
address the merits of his untimely fifth petition for postconviction relief.
{¶26} Furthermore, res judicata barred his successive petition because he could
have raised his claims of ineffective assistance of trial counsel on direct appeal, when
he was represented by different counsel, or in one of his earlier petitions for
postconviction relief. See State v. Griffin, 9th Dist. Lorain No. 14CA010680, 2016-Ohio-
2988, ¶ 12, citing State v. Cole, 2 Ohio St.3d 112 (1982), syllabus (“When the issue of
competent trial counsel could have been determined on direct appeal without resort to
evidence outside the record, res judicata is a proper basis to dismiss a petition for
postconviction relief”); Heid, 2016-Ohio-2756, at ¶ 18 (res judicata barred petitioner
from raising ineffective-assistance claim that he raised or could have raised in prior
petitions for postconviction relief); State v. Edwards, 4th Dist. Ross No. 14CA3474,
2015-Ohio-3039, ¶ 10 (“claims of ineffective assistance of trial counsel are barred from
being raised on postconviction relief by the doctrine of res judicata”). This is not a case
where the exception to the general rule of res judicata applies, i.e., this is not a case
where the defendant was represented by the same counsel at both the trial and on
direct appeal. See State v. Ulmer, 4th Dist. Scioto No. 15CA3708, 2016-Ohio-2873, ¶
15.
{¶27} Therefore, the trial court did not act in an unreasonable, arbitrary, or
unconscionable manner by denying McDougald’s fifth petition for postconviction relief.
We overrule his assignments of error.
B. Motion for Leave to File Motion for New Trial
Scioto App. No. 16CA3736 10
{¶28} McDougald also argues that the trial court erred by denying his motion for
leave to file a motion for new trial. But he failed to assign any error regarding the court’s
decision, and we thus need not address his arguments. See State v. Owens, 2016-
Ohio-176, __ N.E.3d __, ¶ 59 (4th Dist.), quoting State v. Nguyen, 4th Dist. Athens No.
14CA42, 2015–Ohio–4414, ¶ 41 (“ ‘we need not address this contention because we
review assignments of error and not mere arguments’ ”).
{¶29} In addition, even if we exercised our discretion and treated McDougald’s
“issues presented for review” as assignments of error, they would lack merit. The trial
court did not abuse its considerable discretion by denying McDougald’s motion, which
was based on his claim that the state withheld a drug task force report. McDougald did
not establish by clear and convincing evidence that he was unavoidably prevented from
discovering the report long before he filed his motion for leave over eight years after the
verdict in his jury trial. See State v. N.D.C., 10th Dist. Franklin No. 15AP-63, 2015-
Ohio-3643, ¶ 13. Moreover, we held in McDougald’s appeal from the denial of his
fourth and fifth petitions for postconviction relief that the drug task force report did not
establish that the state’s case was false because “[t]he report would merely have been
cumulative to the other evidence admitted at trial” and it “did not constitute material,
exculpatory evidence that the state improperly withheld from McDougald.” McDougald,
2015-Ohio-5590, at ¶ 24.
V. CONCLUSION
{¶30} Having overruled McDougald’s assignments of error, we affirm the
judgment of the trial court.
JUDGMENT AFFIRMED.
Scioto App. No. 16CA3736 11
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto
County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of
this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
McFarland, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________
William H. Harsha, 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.