State v. Scudder , 131 Ohio App. 3d 470 ( 1998 )

Since I see problems with the majority's analysis and disposition of issues as to both the entitlement to effective assistance of counsel in these postconviction proceedings, and as to evidence dehors the record, I respectfully dissent.

I address first the disposition by the majority regarding petitioner's claims of ineffective assistance of counsel in general. The majority, states that "the right to appointed counsel does not apply in civil postconviction relief proceedings." While "civil postconviction" is a troublesome phrase, its intended distinction is one of common usage; as the majority often reiterates, there generally exists no right to counsel in civil proceedings, as opposed to most criminal proceedings, save for a few delineated statutory exceptions. As the majority explains, postconviction proceedings are typically treated as "civil" proceedings. Accordingly, I must concur with the majority's general statement regarding civil proceedings and an indigent's lack of constitutional entitlement to court-appointed counsel. However, I part company with my colleagues on the right to counsel in this case.

As noted by the majority almost in passing, the General Assembly has "felt it appropriate to grant indigent postconviction petitioners access to appointed counsel." To be more precise, the statute referred to by the majority, R.C.2953.21(I), applies specifically to indigent petitioners sentenced to death. Notwithstanding this express grant, the majority goes on to diminish the significance of this statutory right by stating that the legislature "was not required to do so, nor was it required to guarantee the effective assistance of counsel." (Emphasis added.) This observation, it seems to me, is nonresponsive to the issues presented. Although the legislature was not "required" to enact this legislation, it did so. Given this statutory provision, the legislature clearly intended that postconviction proceedings arising from capital cases be treated differently from "civil" postconviction actions in general. Thus, while the Sixth Amendment right to counsel may not be implicated here, our legislature has inarguably carved out a statutory exception to the general rule applied to "civil" proceedings insofar as the right to counsel applies.

While acknowledging that the General Assembly did, in fact, enact legislation to guarantee the appointment of postconviction counsel on behalf of those sentenced to death, the majority ultimately concludes that "effective" counsel was not included in this guarantee. The majority quotes one sentence, the final sentence, of the statutory provision, R.C. 2953.21(I), to bolster its conclusion that the General Assembly "anticipated and sought to prevent collateral attacks upon counsel's performance." That sentence reads:

"The ineffectiveness or incompetence of counsel during proceedings under this section does not constitute grounds for relief in a proceeding under this section, in an appeal of any action under this section, or in an application to reopen a direct appeal." R.C. 2953.21(I)(2).

What precedes this statement is critical language. My interpretation of the statutory language omitted by the majority reveals the legislature's understanding that a person sentenced to death must be entitled to effective counsel at all stages of the proceedings:

"(I)(1) If a person who has received the death penalty intends to file a petition under this section, the court shall appoint counsel to represent the person upon a finding that the person is indigent and that the person either accepts the appointment of counsel or is unable to make a competent decision whether to accept or reject the appointment of counsel. The court may decline to appoint counsel for the person only upon a finding, after a hearing if necessary, that the person rejects the appointment of counsel and understands the legal consequences of that decision or upon a finding that the person is not indigent.

"(2) The court shall not appoint as counsel under division (I)(1) of this section an attorney who represented the petitioner at trial in the case to which the petition relates unless the person and the attorney expressly request the appointment. The court shall appoint as counsel under division (I)(1) of this section only an attorney who is certified under Rule 65 of theRules of Superintendence for Courts of Common Pleas to represent indigent defendants charged with or convicted of an offense for which the death penalty can be or has been imposed." (Emphasis added.) R.C. 2953.21(I)(1) and (2).

The emphasized language mandates an interpretation of this statute to require not only the appointment of counsel, but the appointment of effective, specialized counsel. Specifically, counsel who are appointed must be Civ.R. 65 certified, uniquely, trained for such important litigation. Any other interpretation would completely eviscerate the intent of the statute as a whole. As an example, it does not seem likely that a petitioner sitting on death row who, perhaps, discovers highly exculpatory, evidence that blatantly should have been discovered by the first postconviction counsel at an earlier time would have his subsequent postconviction petition simply dismissed because the petitioner had already had his "one bite of the apple." As exemplified, I cannot imagine that the legislature intended such a result to ensue when postconviction counsel is blatantly ineffective.

Thus, it is my position that not only are postconviction capital offenders entitled, to appointed counsel, they are entitled to effective counsel. If we are to adopt the state's position, based solely upon the final sentence quoted above and significantly relied upon by the majority, then, potentially, the entire notion of a capital defendant's statutory right to effective assistance in postconviction proceedings is ultimately rendered meaningless.

I turn now to my specific concerns regarding the trial court's dismissal of this petition, applying the doctrine of res judicata to claims of ineffective assistance of counsel based upon evidence de hors the record. The trial court wrote:

"The law pertaining to post-conviction petitions for relief is well defined. R.C. 2953.21 requires that the trial court render findings of fact and conclusions of law when denying a post-conviction petition. State v. Mapson (1982), 1 Ohio St.3d 217,218 [1 OBR 240, 241-242, 438 N.E.2d 910, 911-912]. Defendant bears the initial burden of submitting affidavits or other material containing sufficient operative facts which indicate he is entitled to relief. State v. Kapper (1983) 5 Ohio St.3d 36, 38 [5 OBR 94, 96, 448 N.E.2d 823, 825-826], quoting State v. Jackson (1980), 64 Ohio St.2d 107 [18 O.O.3d 348, 413 N.E.2d 819]. ``Defendant's own self-serving declarations or affidavits are insufficient * * *.' If defendant does not meet this burden, the court is not required to conduct an evidentiary hearing.

"* * *

"A defendant cannot raise an issue in a petition for post-conviction relief if the issue could have been raised on direct appeal. State v. Reynolds (1997), 79 Ohio St.3d 158, 161 [679 N.E.2d 1131, 1133-1134], citing State v. Darling [Duling] (1970), 21 Ohio St.2d 13 [50 O.O.2d 40, 254 N.E.2d 670]. In regards to the application of the doctrine to claims of ineffective assistance of counsel, the doctrine will be applied and bar such claims where the claim does not rely on evidence outside the record and defendant is represented by new counsel on appeal. State v. Cole (1982), 2 Ohio St.3d 112 [2 OBR 661,443 N.E.2d 169]."

Appellate counsel alleges that resolution of certain key issues depends upon evidence that was not in the record on direct appeal — the type of evidence which goes to the very heart and purpose of postconviction proceedings. The majority of this court summarily responds, with minimal elaboration, that it finds "nothing which would have prevented defendant from presenting that evidence to either this court or the Ohio Supreme Court in support of his direct appeals." The simple fact remains that evidence not contained in the record on direct appeal cannot be "present[ed] * * * to either this court or the Ohio Supreme Court." For example, if new evidence simply did not exist at the time of trial, it obviously could not be presented to the trial court. If the evidence became known soon after a guilty verdict, the evidence could possibly be considered pursuant to the timely filing of a motion for new trial. However, if the evidence does not become known until the direct appeal is pending, an appellant cannot supplement the record on appeal with evidence which was not before the trial court. Since the evidence is not a part of the record on direct appeal, neither this court nor the Supreme Court of Ohio would consider it. Hence, postconviction relief is a petitioner's lone avenue to present such evidence.

If the additional evidence was not in the record, it was not in the record. We, as an appellate court, cannot decide direct appeals based upon what could have been in the record or what should have been in the record. We can decide only based upon what is in the record. We would never permit a witness who did not testify at trial or at least provide an affidavit to the trial court to present that witness's opinion for our consideration on direct appeal. Again, I reiterate that this evidentiary restriction explains why the legislature prudently enacted a potential cure — postconviction proceedings, likely the only forum in which we, as' reviewing courts, do not have our judicial hands tied and our, eyes forcibly shut with respect to evidence for merely dehors the record.

I turn now to the specific evidence appellant attempted to at least have considered via his postconviction relief petition.

This leads directly to a discussion of the affidavit of William C. Thompson. The theory that trial counsel did not effectively address the DNA evidence presented at trial was a theory presented on direct appeal. However, the appellate courts could not consider expert opinion evidence that trial counsel struggled. Instead, the appellate courts could only draw inferences from what was in the record. The new opinion evidence is, for me, the essence of what should be presented by way of postconviction relief.

Similarly, evidence of Scudder's organic brain damage was presented on postconviction relief by way of an affidavit of Jolie S. Brams, Ph.D. The majority of this panel suggests that this affidavit could have been addressed in defendant's direct appeals. For the reasons stated above, this simply is not so.

Given the critical information contained in these affidavits, in particular, I believe that the trial court should have conducted an evidentiary hearing on the merits of the petition for postconviction relief. After receiving live testimony, the trial court could then decide what relief, if any, was warranted.

We, as appellate courts, should be mindful that in such cases we are deciding whether someone should live or die. We must exercise great care to assure that the trial proceedings, as well as any proceedings which follow, are properly conducted and that the facts are accurately and thoroughly determined. Based upon my interpretation of the postconviction statute as applied here, I believe that the legislature is also mindful of the gravity of these cases. The evidence presented for the trial court's consideration deserved careful, independent analysis following a hearing to determine the potential substantive merit. Therefore, I would sustain the third assignment of error insofar as the trial court erroneously applied the statutory provisions addressed above in failing to conduct a hearing. Since the majority does not, I respectfully dissent.