State v. Rose , 2024 Ohio 5053 ( 2024 )

[Cite as State v. Rose, 2024-Ohio-5053.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY
STATE OF OHIO, CASE NO. 2024-A-0053
Plaintiff-Appellee,
Civil Appeal from the
- vs - Court of Common Pleas
JOHN R. ROSE,
Trial Court No. 2020 CR 00226
Defendant-Appellant.
OPINION
Decided: October 21, 2024
Judgment: Affirmed
Colleen M. O’Toole, Ashtabula County Prosecutor, and Mark Majer, Assistant
Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).
John R. Rose, pro se, PID# A781-855, Mansfield Correctional Institution, 1150 North
Main Street, P.O. Box 788, Mansfield, OH 44901 (Defendant-Appellant).
JOHN J. EKLUND, J.
{¶1} Appellant, John Rose, appeals the denial of his successive petition for
postconviction relief from the Ashtabula County Court of Common Pleas. Appellant’s
underlying conviction was for Aggravated Murder, in violation of R.C. 2903.01(A).
{¶2} Appellant raises three assignments of error, all of which relate to whether
the trial court erred in dismissing his petition for postconviction relief without a hearing.
{¶3} After review of the record and the applicable caselaw, we find Appellant’s
assignments of error to be without merit. The trial court appropriately exercised its
discretion to not hold a hearing for postconviction relief when it determined that Appellant
failed to present substantive grounds for relief and that the materials in support of his
petition were not credible.
{¶4} Therefore, we affirm the judgment of the Ashtabula County Court of
Common Pleas.
Substantive and Procedural History
{¶5} In June 2020, Appellant was indicted by the Ashtabula County Grand Jury.
He was charged with: Count One: Aggravated Murder in violation of R.C. 2903.01(A), an
unclassified felony; Count Two: Murder in violation of R.C. 2903.02(A), an unclassified
felony; Count Three: Murder in violation of R.C. 2903.02(B), an unclassified felony; and
Count Four: Felonious Assault in violation of R.C. 2903.11(A)(2), a felony of the second
degree. Appellant pled not guilty and a jury trial was held.
{¶6} The jury found Appellant guilty on all counts. The trial court found that
Counts Two, Three, and Four merged with Count One for purposes of sentencing. The
court sentenced Appellant to life in prison without the possibility of parole.
{¶7} Appellant timely filed an appeal in State v. Rose, 2022-Ohio-3197 (11th
Dist.). We affirmed Appellant’s conviction in that case and found that the trial court
committed plain error by allowing Appellant’s wife, Marie Rose, to testify without first
making an affirmative determination on the record that Marie Rose had elected to testify.
However, we also concluded that this error was harmless and that the outcome of the trial
would not have been different without Marie Rose’s testimony.
{¶8} On March 11, 2022, during the pendency of his direct appeal, Appellant filed
a pro se motion for leave to file for a new trial. On March 21, 2022, Appellant filed a motion
in limine for a new trial. On April 7, 2022, Appellant filed a petition for postconviction relief.
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{¶9} The trial court overruled these motions without a hearing. In its judgment
entry, the trial court noted that it treated Appellant’s motions for a new trial as motions for
postconviction relief because Appellant had filed the motions while he had a direct appeal
pending. Appellant appealed the denial of these motions.
{¶10} In State v. Rose, 2022-Ohio-4041 (11th Dist.), we appointed counsel for
Appellant and counsel filed a merit brief arguing that the trial court erred by dismissing
his petition for postconviction relief without a hearing. We found that the trial court did not
abuse its discretion and affirmed.
{¶11} On November 28, 2022, Appellant moved for reconsideration of this Court’s
judgment affirming the denial of his postconviction petition without a hearing. He argued
that trial counsel had rendered ineffective assistance of counsel for not raising the issue
of the trial court recasting his motion for new trial and motion for new trial in limine as
motions for postconviction relief under Crim.R. 33. We overruled his motion for
reconsideration. Appellant then appealed to the Ohio Supreme Court, which did not
accept the appeal for review. State v. Rose, 2023-Ohio-86.
{¶12} On November 16, 2023, Appellant filed a second petition for postconviction
relief, captioned as an “Amended Petition for Post-Conviction Relief.” Appellant later filed
“Additional Appendices” on May 2, 2024.
{¶13} On May 9, 2024, the trial court denied Appellant’s successive petition for
postconviction relief without a hearing. The trial court characterized the petition as
“repetitive” and attempting to “relitigate every aspect” of the case already raised in his two
prior appeals.
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{¶14} The trial court relied on R.C. 2953.23(A)(1) and (2) which provide that a
court may not entertain successive petitions for postconviction relief without satisfying the
statutory requirements. The trial court determined that Appellant was not unavoidably
prevented from discovering Marie Rose’s affidavit and that Marie Rose was subject to
cross-examination at trial.
{¶15} Further, the trial court observed that this Court previously determined it was
harmless error to admit the testimony of Marie Rose. Thus, even if Marie Rose’s testimony
at trial was indeed false, the outcome of the trial would not have been different because
Appellant “admitted that he killed [Paul] Ruffo in self-defense” and that “Appellant’s flight,
discarding the weapons, and dishonest statements severely undermine his claim of self-
defense. [State v. Rose, 2022-Ohio-3197, ¶ 74 (11th Dist.)].”
{¶16} Finally, the trial court found Marie Rose’s affidavit to not be credible
because she had an interest in seeing Appellant’s conviction overturned and because the
affidavit did not specify which part of her “testimony was false or what made it false.”
Instead, the affidavit only made a “vague, generalized statement that the testimony was
false.”
{¶17} Therefore, the trial court denied Appellant’s successive petition for
postconviction relief without a hearing.
{¶18} Appellant timely appealed raising three assignments of error.
Standard of Review
{¶19} We review a trial court’s decision on a petition for postconviction relief under
R.C. 2953.02 for an abuse of discretion. State v. Hobbs, 2011-Ohio-5106, ¶ 14 (11th
Dist.). An abuse of discretion is “the trial court’s ‘failure to exercise sound, reasonable,
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and legal decision-making.’ State v. Beechler, 2010-Ohio-1900, ¶ 62 (2d Dist.), quoting
Black’s Law Dictionary 11 (8th Ed.Rev.2004).” State v. Raia, 2014-Ohio-2707, ¶ 9 (11th
Dist.).
{¶20} R.C. 2953.21(A)(1)(a) provides, in relevant part, that “[a]ny person who has
been convicted of a criminal offense . . . and who claims 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 . . . may file a petition in the
court that imposed sentence, stating the grounds for relief relied upon, and asking the
court to vacate or set aside the judgment or sentence or to grant other appropriate relief.”
“Before granting a hearing on a petition . . ., the court shall determine whether there are
substantive grounds for relief.” R.C. 2953.21(D).
{¶21} However, R.C. 2953.23 provides that a court “may not entertain” a
successive petition unless both of the following apply:
(a) Either the petitioner shows that the petitioner was unavoidably prevented
from discovery of the facts upon which the petitioner must rely to present
the claim for relief, or, subsequent . . . to the filing of an earlier petition, the
United States Supreme Court recognized a new federal or state right that
applies retroactively to persons in the petitioner’s situation, and the petition
asserts a claim based on that right.
(b) The petitioner shows by clear and convincing evidence that, but for
constitutional error at trial, no reasonable factfinder would have found the
petitioner guilty of the offense of which the petitioner was convicted . . ..
{¶22} When a trial court dismisses a petition for postconviction relief, it is
mandatory for the court to issue findings of fact and conclusions of law. R.C. 2953.21(D);
State v. Calhoun, 86 Ohio St.3d 279, 291 (1999). The findings of fact and conclusions of
law “need not discuss every issue raised by appellant or engage in an elaborate and
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lengthy discussion in its findings of fact and conclusions of law.” Id. The findings need
only be comprehensive and pertinent to the issues presented in the petition and provide
a basis of support for the court’s conclusion. Id. at 291-292.
{¶23} “A petition for postconviction relief does not provide a petitioner a second
opportunity to litigate his or her conviction.” State v. Hobbs, 2011-Ohio-5106, ¶ 17 (11th
Dist.). “The doctrine of res judicata establishes that ‘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 which resulted in that judgment of
conviction or on an appeal from that judgment.’” (Emphasis in original) State v.
D'Ambrosio, 73 Ohio St.3d 141, 143 (1995), quoting State v. Perry, 10 Ohio St.2d 175,
180 (1967).
{¶24} Appellant must provide competent, relevant, and material evidence outside
of the trial court record in support of a postconviction petition to prevent the claim from
being dismissed on res judicata grounds. State v. Lacy, 2020-Ohio-1556, ¶ 26 (11th Dist.),
citing Hobbs at ¶ 18.
{¶25} Next, “postconviction relief petitions are subject to dismissal without a
hearing if the petition and the supporting evidentiary documents do not contain sufficient
operative facts which, if true, would establish substantive grounds for relief.” State v. Hull,
2019-Ohio-23, ¶ 31 (11th Dist.), quoting State v. Apanovitch, 113 Ohio App.3d 591, 597
(8th Dist.1996); Calhoun, 86 Ohio St.3d 279. “The trial court has a duty to ensure that the
petitioner adduces sufficient evidence to warrant a hearing.” State v. Vinson, 2008-Ohio-
3059, ¶ 30 (11th Dist.).
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{¶26} Although a trial court should give deference to sworn affidavits filed in
support of the petition, the court may nevertheless exercise its sound discretion by
“determining whether to accept the affidavits as true statements of fact.” Calhoun, supra,
at 284. This is because R.C. 2953.21 “clearly calls for discretion in determining whether
to grant a hearing, accepting all supporting affidavits as true is certainly not what the
statute intended.” Id.
{¶27} In determining the credibility of supporting affidavits in postconviction relief
proceedings, the trial court should consider the following factors: (1) whether the judge
reviewing the postconviction relief petition also presided at the trial, (2) whether multiple
affidavits contain nearly identical language, or otherwise appear to have been drafted by
the same person, (3) whether the affidavits contain or rely on hearsay, (4) whether the
affiants are relatives of the petitioner, or otherwise interested in the success of the
petitioner's efforts, and (5) whether the affidavits contradict evidence proffered by the
defense at trial. Moreover, a trial court may find sworn testimony in an affidavit to be
contradicted by evidence in the record by the same witness, or to be internally
inconsistent, thereby weakening the credibility of that testimony. Id. at 286.
{¶28} “Depending on the entire record, one or more of these or other factors may
be sufficient to justify the conclusion that an affidavit asserting information outside the
record lacks credibility.” Id.
Assignments of Error and Analysis
{¶29} Appellant’s first assignment of error states: “The trial court erred to the
prejudice of Defendant-Appellant for postconviction relief taken pursuant to R.C. 2953.21
(“A.P.C.R.P.”) on grounds its predecessor 2953.21 petition (“P.C.R.P.”) was a 2nd or
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successive petition; and, secondly, in so adjudicating the APCRP, it proceeded without
subject matter jurisdiction.”
{¶30} Broadly, Appellant’s argument in his first assignment of error relates to his
first petition for postconviction relief. He argues that the trial court erred by recasting his
post-conviction motions for a new trial as a petition for postconviction relief and that the
trial court overruled his April 7, 2022 Petition for Postconviction Relief “sub silentio.”
{¶31} However, this argument is not properly before us. Appellant’s appeal of the
denial of his first petition for postconviction relief did not address the trial court’s recasting
of his motions. Appellant then filed an application for reconsideration on this basis, which
we overruled. After that, Appellant appealed to the Ohio Supreme Court, which did not
accept the appeal for review. State v. Rose, 2023-Ohio-86. Thus, this argument is barred
by the doctrine of res judicata. See State v. D'Ambrosio, 73 Ohio St.3d at 143.
{¶32} Appellant argues that res judicata should not apply because he did not raise
this issue in his prior appeal from denial of postconviction relief in State v. Rose, 2023-
Ohio-4041 and could not have argued this issue until he suffered prejudice from the trial
court’s improper recasting.
{¶33} A petitioner is barred by res judicata from raising an issue in a petition for
postconviction relief if the petitioner was represented by counsel and the issue was raised
or could have been raised at trial or on direct appeal. State v. Jackson, 2019-Ohio-4735,
¶ 15 (11th Dist.). To overcome res judicata, a petitioner “must adduce evidence outside
the record that demonstrates” the petitioner “could not have appealed the constitutional
claims based upon information already in the record.” State v. Gatchel, 2008-Ohio-1029,
¶ 35 (11th Dist.).
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{¶34} Appellant’s argument is without merit because he was represented by
counsel during his trial, his direct appeal, and during his first petition for postconviction
relief. Therefore, res judicata bars any claims that were raised or could have been raised.
D'Ambrosio at 143.
{¶35} More importantly, this argument is substantively incorrect. First, because
Appellant did indeed file a first petition for postconviction relief on April 7, 2022. Second,
the trial court correctly determined that it had the jurisdiction to hear a timely filed petition
for postconviction relief while Appellant’s appeal was pending, but did not have the
jurisdiction to hear a motion for a new trial. See State v. Yeager, 2023-Ohio-2730, at ¶ 13
(11th Dist.) (“Because, at the time of the trial court's judgment, appellant's
direct appeal from his conviction was still pending in this court, the trial court properly
determined that it lacked jurisdiction to rule on appellant's motion for a new trial because
the granting of such relief would conflict with this court's jurisdiction to fully review the
pending final order.”).
{¶36} Accordingly, Appellant’s first assignment of error is without merit.
{¶37} We next address Appellant’s second and third assignments of error in a
consolidated fashion.
{¶38} Appellant’s second assignment of error states: “The trial court erred by
denying the merits of, and defendant’s A.P.C.R.P. (and appendices) filed 11-16-2023,
and Additional Appendices filed 5-2-24.”
{¶39} Appellant’s third assignment of error states: “The trial court abused its
discretion to the prejudice of Appellant in making findings of fact that: ‘Defendant appears
to attempt to relitigate every aspect of [his criminal] case, including his two appeals’
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(Judgment, P.1); ‘Defendant filed a petition for Post-Conviction Relief, and the Petition
was denied’ (id., P.2); ‘Defendant recognizes [his PCRP/APCRP] is clearly a successive
petition . . . which is why he attempts to relate back the present petition to his prior ones
in order to circumvent R.C. 2953.23’ (id) ‘. . . [the] Defendant admitted he killed Ruffo in
self-defense’ (id.P.3); and that Rose could have discovered the contents of his wife’s
APCRP affidavit at time of trial because he was served with her complaint in jail in
December, 2020; and that Marie’s App. A-5 affidavit was not factually specific.”
{¶40} Appellant’s argument under these assignments of error address the trial
court’s substantive basis for denying his petition for postconviction relief and argue the
trial court’s findings of fact and conclusions of law in the judgment dismissing his petition
were in error.
{¶41} Appellant’s “Amended Petition for Post-Conviction Relief” and “Additional
Appendices” contained numerous affidavits from many individuals, which we address in
turn. Appellant argues that the affidavits and other attachments to his petition provide
competent, relevant, material evidence warranting a hearing. However, whether applying
the standard of review for successive petitions for postconviction relief or the standard of
review for a first petition for postconviction relief, the trial court properly denied his petition
without a hearing.
{¶42} Appellant’s petition contained a March 28, 2024 affidavit of his wife, Marie
Rose. In that affidavit, Marie Rose stated that she was pressured into giving a false
statement to Detective Ward and later to give false testimony against Appellant at his jury
trial. She claimed that Detective Ward told her he could make an active warrant for Marie
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Rose “disappear” and help her to get a quick divorce from Appellant and custody of her
children.
{¶43} Appellant’s petition also contained two affidavits of his son, Brian Rose. In
the first affidavit, Brian Rose stated that he overheard conversations between Marie Rose
and Detective Ward in which Detective Ward offered to help Marie Rose with court
warrants and with a divorce from Appellant. This affidavit was attached to Appellant’s first
petition for postconviction relief. In the second affidavit, Brian Rose stated that the trial
court had misattributed a statement he never made in his first affidavit. He also stated
that Appellant did not confess, admit anything, or even speak to Marie Rose on the night
of the murder. He said that Appellant told him Rachel Clevenger had stabbed the victim,
Paul Ruffo.
{¶44} One affidavit of Appellant’s daughter, Marissa Rose, stated that Appellant
did not make any statements or admissions to Marie Rose on the night of the murder.
{¶45} Kacee Moser, an acquaintance of Appellant, provided an affidavit stating
that she was at Appellant’s house on the night of his arrest. She said that Marie Rose and
Appellant did not talk that evening and that the two rarely talked at all. She also said that
she spoke to Marie Rose after the trial and that Marie Rose admitted that she lied about
statements Appellant made to her on the night of the murder. She said she was prepared
to testify at trial but was never called as a witness.
{¶46} Richard Hennessey, an inmate at Mansfield Correctional Institution who
had previously resided in Ashtabula County provided an affidavit. He said that he met
Appellant at Mansfield Correctional Institution and asked about the murder of Ruffo.
Hennessey said that Appellant has maintained his innocence in prison.
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{¶47} Appellant also attached at least thirteen of his own affidavits to his
“Amended Petition for Post-Conviction Relief” and “Additional Appendices.”
{¶48} In a February 14, 2022 affidavit, Appellant said that Detective Ward advised
Marie Rose that Ward could help her get a quick divorce from Appellant as a means of
nullifying the marital privilege before Appellant’s trial.
{¶49} In a February 14, 2022 affidavit, Appellant said that his trial counsel “pushed
a self defense strategy on me I didn’t want because I didn’t have to defend myself against
Paul Ruffo attacking me. I did not stab or kill or otherwise cause the death of Paul Ruffo.
Rachel Clevenger stabbed and killed him.” Appellant stated that he told trial counsel this
information and wanted to present those facts at trial but that trial counsel “refused that
strategy” and “refused to investigate any aspect of the claim that Rachel stabbed Ruffo.”
He said that he initially took the blame and lied to investigators as a means of protecting
Clevenger.
{¶50} In a February 14, 2022 affidavit, Appellant said that trial counsel failed to
inquire into Ruffo’s neighbor who gave statements to the police, failed to locate security
camera footage, and failed to use a medical report that indicated his DNA was not on
certain lacerations on Ruffo’s body.
{¶51} In a February 15, 2022 affidavit, Appellant said that he learned that the
Ashtabula County Sheriff’s office knew that Paul Ruffo was operating a drug house and
that his trial counsel refused to develop a defense using this information.
{¶52} In a March 7, 2022 affidavit, Appellant said that his trial counsel fell asleep
during substantial segments of the direct examination of several witnesses, including the
testimony of Marie Rose.
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{¶53} In a March 18, 2022 affidavit, Appellant said that he told trial counsel that
Marie Rose had previously lied about his activity in a domestic violence incident and that
trial counsel refused to investigate this claim or develop it at trial.
{¶54} In a November 14, 2022 affidavit, Appellant said that he found newly
discovered evidence that Brian Rose overheard a conversation between Marie Rose and
Detective Ward on the night of the murder. Appellant said that Brian Rose did not come
forward with this evidence because he did not know of its importance at the time and
because Marie Rose threatened him.
{¶55} In a January 6, 2023 affidavit, Appellant reiterated that trial counsel
pressured him to rely on a self-defense strategy and restated that Clevenger killed Ruffo.
He said he felt a need to protect her memory from being tarnished even after she died,
and that he did not tell the truth at trial because of that desire.
{¶56} In a July 14, 2023 affidavit, Appellant stated that Marissa Rose’s affidavit
was newly discovered evidence. He said no one knew what Marie Rose would say at trial
and that he did not know to seek Marissa Rose’s impeachment testimony until then. He
also stated that he asked trial counsel to interview everyone at his house on the night of
the murder, but that counsel refused to do so.
{¶57} In a July 14, 2023 affidavit, Appellant said that the victim, Paul Ruffo,
attacked him with a knife, the two scuffled and fell on the ground, and that Rachel
Clevenger stabbed Ruffo to defend Appellant. Appellant denied stabbing Ruffo in self-
defense.
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{¶58} In a July 17, 2023 affidavit, Appellant said that trial counsel refused to
investigate what his children, Brian and Marissa, knew despite Appellant’s insistence that
he talk to them.
{¶59} In an August 23, 2023 affidavit, Appellant stated that his trial testimony that
he “must have” stabbed Ruffo and his failure to identify Clevenger as stabbing Ruffo was
false testimony that he only gave because he followed trial counsel’s self-defense
strategy.
{¶60} In an April 9, 2024 affidavit, Appellant said that he did not know what Marie
Rose was going to say at trial and that he was unable to make contact with her until 2024.
When he did make contact with her, she provided him with her affidavit stating that she
had perjured herself at trial.
{¶61} The numerous affidavits Appellant attached to his petition are often
contradictory, self-serving, and generally concerned with Appellant’s claim that
Clevenger, not Appellant, stabbed Ruffo. Appellant’s assertion that Clevenger stabbed
Ruffo is essentially the same as the one he made in his prior petition for postconviction
relief. We affirmed the trial court’s rejection of that assertion saying that:
Appellant either perjured himself during his trial or . . . his intent is to
perjure himself at a new trial based on the information he provided in
his affidavit. Appellant failed to present competent, reliable, and
material evidence that Appellant could not have presented at his
murder trial. Therefore, the trial court properly exercised its discretion
to dismiss Appellant’s petition for postconviction relief without a
hearing.
State v. Rose, 2022-Ohio-4041 at ¶ 56.
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{¶62} Appellant’s numerous self-serving affidavits in this petition are similarly not
credible and the trial court properly exercised its discretion to dismiss the petition without
holding a hearing.
{¶63} Next, as we noted in our decision on Appellant’s first petition for
postconviction relief, the affidavits from Appellant’s children, and the defenses presented
through their testimony could have been raised at Appellant’s trial. Id. at ¶ 52.
{¶64} The trial court also concluded that Appellant was not unavoidably prevented
from discovering the facts contained in Marie Rose’s affidavit and that her affidavit was
“not credible” because the affidavit failed to “specify which part of Marie’s testimony was
false or what made it false. The affidavit only makes the vague, generalized statement
that the testimony was false. Further, as his former wife, Marie has an interest in
Defendant’s efforts to overturn his conviction for murder.”
{¶65} Even construing Appellant’s substantive arguments as if they were filed as
a first petition for postconviction relief, the trial court properly exercised its discretion by
finding Appellant’s attachments to not be credible and denying his petition without a
hearing. The mere filing of affidavits does not compel the trial court to accept all affidavits
as true and thereafter hold a hearing on the petition. Appellant failed to provide
competent, relevant, material evidence outside of the trial court record that would warrant
a hearing. The trial court did not abuse its discretion in issuing its findings of fact and
conclusions of law.
{¶66} Accordingly, Appellant’s second and third assignments of error are without
merit.
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{¶67} For the foregoing reasons, the judgment of the Ashtabula County Court of
Common Pleas is affirmed.
MARY JANE TRAPP, J.,
MATT LYNCH, J.,
concur.
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