State v. Quinn , 98 N.E.3d 1184 ( 2017 )

[Cite as State v. Quinn, 2017-Ohio-8107.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 2016-CA-64
:
v. : T.C. NO. 13-CR-869
:
JAMES E. QUINN : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the ___6th __ day of _____October_____, 2017.
...........
ANDREW P. PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorney, 50
E. Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
JAMES E. QUINN, Inmate No. 699-607, London Correctional Institute, P. O. Box 69,
London, Ohio 43140
Defendant-Appellant
.............
DONOVAN, J.
{¶ 1} This matter is before the Court on the Notice of Appeal of James Quinn.
Quinn appeals from the denial of his February 17, 2015 petition for post-conviction relief.
We hereby affirm the judgment of the trial court.
{¶ 2} Quinn was convicted, following a jury trial on March 24-25, 2014, of two
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counts of domestic violence, in violation of R.C. 2919.25(A), felonies of the third degree;
two counts of kidnapping, in violation of R.C. 2905.01(B)(1), felonies of the first degree;
one count of abduction, in violation of R.C. 2905.02(A), a felony of the third degree; and
one count of intimidation, in violation of R.C. 2921.04(B)(1), a felony of the third degree.
After the kidnapping offenses and the abduction offense were merged for sentencing,
Quinn received an aggregate consecutive sentence of 20 years. The victim of the
offenses is his mother, Beverly Quinn. Quinn’s convictions were affirmed on appeal.
State v. Quinn, 2016-Ohio-139, 57 N.E.3d 379 (2d Dist.) (“Quinn I”).
{¶ 3} Four months after his convictions, Quinn filed a motion for a new trial, which
the trial court overruled. Attached to the motion were Beverly’s affidavits, in which she
averred in part that “[a]t this time I realized that my son could not have been the one who
committed the crimes against me. I did not have my glasses on, nor my hearing aid. I
am 100% sure that it was not James.” This Court affirmed the judgment of the trial court
on the motion for a new trial on the same day it affirmed Quinn’s convictions. State v.
Quinn, 2d Dist. Clark No. 2014-CA-95, 2016-Ohio-140 (“Quinn II”).
{¶ 4} The relevant facts herein were set forth in Quinn I, ¶ 3-6, as follows:
The victim, Beverly Quinn, is a 79–year–old woman, the mother of
two daughters and two sons, including the defendant, James Quinn. In
December 2013, Quinn's girlfriend, Samantha Ferrell, was living with
Quinn's mother, Beverly, in her two-bedroom house. At that time, Quinn was
under indictment for a domestic violence incident involving his mother; as a
condition of bond he was subject to a no-contact order with his mother. Late
in the evening, Beverly was awakened by noise, and found Quinn and
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Ferrell in her home, drinking vodka and watching television. Beverly told
Quinn he was not allowed to be there and asked Quinn to leave, to turn off
the television, and for Samantha to go to her room. Quinn became very
angry with his mother, pushed her into a chair, and hit her. When Quinn
suggested to Samantha that they take his mother to “mental health,”
Samantha suggested that they take Beverly out into the country and dump
her. Beverly then ran to her own bedroom, locked the door, and left the
house by crawling out of the bedroom window. Beverly went to a neighbor's
house and called the police. During the 911 call, Quinn identifies her son,
James Quinn, as the person who has abused her, and states that Quinn left
her house driving a white station wagon. Quinn and Samantha left Beverly's
house before the police arrived. The police took photos of Beverly's bruises,
and allowed her to return to her own home after they verified it was empty
and secured. One of the two officers who spoke with Beverly at this time
testified that Beverly was very articulate and said it was her son who had
struck her in the face. No charges were filed against Quinn at this time.
According to Beverly's testimony at trial, several hours later Quinn
returned to his mother's home, without Samantha, forced entrance into his
mother's bedroom, and forced his mother to leave the house with him,
threatening to take her to the country and make her jump off a
bridge. Beverly described her son as very angry and intoxicated on alcohol
and drugs. Beverly left with her son because she felt she had no choice. He
drove out into the country, stopped at a bridge and said, “if you don't jump,
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I'll push you.” According to Beverly, Quinn decided he could not do it, and
told her that he wouldn't do anything to her as long as she did not testify
against him. Beverly testified at trial that Quinn then drove to Walmart,
hitting her in the head numerous times as he was driving. After he left the
car, Beverly got out of the car and approached a Walmart employee for
help. She told the employee that her son had hurt her and was trying to kill
her. The Walmart employee verified this course of events and testified that
Beverly was scared, but she knew who she was, where she was, and was
not disoriented or confused. The Walmart employee testified that as Beverly
was talking to him, a man came up to both of them, grabbed Beverly's arm
and complained that she was trying to hurt him. The employee insisted that
he let go and leave her alone. A surveillance video of the Walmart parking
lot corroborates this testimony, but is taken from too far a distance to identify
the man's facial features. The surveillance video shows that Beverly
approached the employee, a man approached them, and then the
unidentified man left in a white station wagon. The employee could not
identify Quinn as the person he saw and talked with in the parking lot.
Beverly testified at trial that Quinn was driving her car, which she described
as a tan sedan, not a white station wagon. No witness identified Quinn as
the man depicted in the video in the Walmart parking lot.
The detective who interviewed Beverly at Walmart testified that
Beverly identified her son, James Quinn, as the person who attacked her in
her home, who forced her into a car, threatened to harm her, and hit her
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face, causing visible injuries. The detective also testified that during his
interview on the scene, Beverly was very emotional, but lucid and articulate
about the events of the evening. Based on this interview, the detective
obtained a search warrant. A search of Beverly's home revealed evidence
that her bedroom door had been damaged as the result of being forced
open.
Beverly was transported to the hospital by ambulance and treated in
the Emergency Room at Springfield Regional Medical Center. The
paramedic who transported Beverly testified that she was alert and oriented.
The ER Nurse testified that Beverly was oriented, and did not appear to
suffer from dementia or any other mental defect. The ER Nurse testified that
Beverly identified her son as the person who had hit and injured her.
{¶ 5} On February 17, 2015, Quinn filed a petition for post-conviction relief,
asserting nine claims. In his first claim, Quinn asserted that there “was exculpatory
evidence that was not disclosed to me that was in the car.” The following statement in
support of the first claim is attached:
A white station wagon, claimed to be used in the crimes I am
currently incarcerated for, was found on Montego Drive in the Northridge
area of Clark County. As stated in the highlighted area of the connected
affidavit, a Deputy Sherriff [sic] was at the car. The car description and
plate number appeared on the police report associated with this incident.
The car had a law enforcement bulletin associated with it, as it was said to
be used in criminal activity, also noted by the Deputy Sherriff [sic]. The car
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belonged to Beverly Quinn. As the owner of the car, Beverly Quinn spoke
to the deputy, asking if she could take the car, the deputy said no, as it was
involved in a crime. She then asked if she could remove things from the
car, and again told no. As pointed out in the affidavit, there was a cell
phone and a man’s jacket, neither of these items that were in the car she
recognized. I lived with her for several years and she knew I had no cell
phone and she knew it was not my jacket.
I was asked by Deputy Lisle at the jail if I would release the keys to
the prosecution or my Mother, as her house key was also on the key ring.
I first stated to get the key from Samantha, as she had a set, and was the
last to drive.
The car, nor the items in it, were ever in discovery. The car was
towed to Maines at the deputy’s order. The keys were never given to my
Mother, as the people at Maines had the keys. My defense attorney * * *
asked about the car in trial and was told they (the police) did not think it was
impounded, but were not sure. (tr. Pg. 137) The prosecution had the
obligation, at that time, to reveal where the car was, they did not. * * * This
is not so much about the car, as the items in it.
* * * This, coupled with Caleb Hilt, the store clerk’s testimony, would
acquit the appellant or defendant. Mr. Hilt, the store clerk, was the only
eyewitness other than Ms. Quinn. He clearly states in his testimony
several times, the defendant is not the man in the video, thus not guilty.
The fact there is a cell phone and jacket, that do not belong to the defendant,
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in the same vehicle, on video, the assailant is seen getting out of and into,
with the testimony of a man that was conversating [sic] and checking the
man’s face for injuries (Tr. Pgs. 162-175) and said he is not the same man
that was on trial is enough to acquit!! * * * The jacket and cell phone, with
Caleb Hilt’s testimony, would cast extreme reasonable doubt. * * *
{¶ 6} Also attached is what purports to be Beverly’s affidavit, which provides that
on the date of the offenses, she observed Ferrell “injecting” something into the vodka
Quinn was drinking, and that Ferrell struck her and told Beverly that “she would get her
boyfriend to kill me.” Beverly stated that after she went to sleep, she was awakened by a
man she believes to be Ferrell’s boyfriend, who did not let her get her glasses before
removing her from her home. She stated that the prosecutor came to her apartment and
accused her of lying. Beverly stated her “prior affidavits were true. Ms. McCormick
came to my apartment and was quite nasty, saying they were not true.” Beverly stated
that she told the police and hospital personnel that she did not have her glasses and could
not see well. Beverly questioned, “Why did Jim’s attorney not question me? * * * Why did
they not check the car, which had a strange male coat and telephone in it? Neither of
those belonged to Jim.”
{¶ 7} Also attached is the affidavit of Techo Peterson, a fellow inmate of Quinn’s,
which provides as follows:
I, Techo Peterson, herein Affiant, after being duly cautioned and
sworn according to law do hereby attest that the following is true and correct
to the best of my knowledge, understanding and belief:
I would testify if need be, that shortly after James Quinn was placed
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in my pod in December of 2013, the jailer, I believe was Sherriff [sic] Lisle,
asked James if he wanted to give his car keys to his mom or the prosecutor.
{¶ 8} In his second claim Quinn asserted that he was denied a fair trial because
Beverly told the police she was not wearing her glasses in the course of the offenses and
had trouble seeing, and the State did not disclose this information to Quinn.
{¶ 9} In his third claim, Quinn asserted that he was denied effective assistance of
counsel because his attorney did not call “any defense witnesses,” namely Kirk Savage.
Savage’s attached affidavit provides:
I Kirk Savage, affiant herein, after being first duly cautioned and
sworn according to law, do hereby depose, attest, and swear that I am of
sound mind and do state that the following is true and correct to the best of
my knowledge, understanding and belief. Affiant further state that:
I Kirk Savage saw James Quinn early Saturday morning before he
was on the new [sic] in December of 2013 I was puting [sic] a motor in my
truck so I left from Washington Courthouse late. I got to Mark Rafferty [sic]
house around 3 or 3:30 am due to heavy snow. James was asleep on the
couch. I tryd [sic] to wake him but could not I stayed till 6:30 or 7:00 a.m.
I left after a young girl stoped [sic] and picked him up. She was saying
something about WalMart. I called the public defender’s office because the
Court told me he would be apointed [sic] a atterny [sic]. I called the public
atterny [sic] office several times. Never got a response so I called over * *
*
There is an arrow drawn on the affidavit following the word “over,” but there is nothing on
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the back of the page.
{¶ 10} In his fourth claim, Quinn cited the trial court’s decision overruling his
motion for a new trial, in which the court noted as follows: “The victim is the defendant’s
mother and it is only natural that she might change her testimony as she has done in past
hearings, but the Wal-Mart video clearly supports the victim’s testimony at trial.” Quinn
asserted that he was denied due process because the State did not disclose to Quinn
that the victim had recanted previous testimony.
{¶ 11} In his fifth claim, Quinn asserted that prosecutorial misconduct occurred
when Beverly “was terrorized” by the prosecutor after Beverly provided supporting
affidavits for the motion for a new trial. In his sixth claim, Quinn asserted he was denied
due process rights because the “inside” video from Walmart was never retrieved, and the
parking lot video is of poor quality. In his seventh claim, Quinn asserted that he received
ineffective assistance of counsel because his attorney did not investigate the car
containing the phone and jacket. In his eighth claim Quinn asserted that he received
ineffective assistance of counsel because his attorney failed to interview “all witnesses,”
specifically Walmart employee Caleb Hilt who responded to Beverly in the parking lot.
Finally, in his ninth claim Quinn asserted that he was denied due process because two
days after his arrest he tested positive for heroin, which “is exculpatory evidence that
easily would have shown the intent of Samantha Ferrell, a heroin addict,” and further its
presence in his system rendered him incapable of committing the offenses.
{¶ 12} On March 26, 2015, the State filed an Answer and a Motion for Summary
Judgment. Quinn opposed the Motion for Summary Judgment on April 14, 2015. On
July 14, 2015, the court overruled the State’s Motion for Summary Judgment as being
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untimely filed beyond the 20 day period provided in R.C. 2953.21(D). On October 26,
2015, the court dismissed Quinn’s petition for post-conviction relief, noting that it
“considered that petition, the State’s answer, and the facts presented during the course
of the defendant’s trial,” and concluded that the “petition fails to set forth substantive
grounds for relief.”
{¶ 13} Quinn appealed from the dismissal (2015-CA-0105). On March 9, 2016,
the trial court issued findings of fact and conclusions of law, and Quinn filed a Notice of
Appeal (2016-CA-0021). This Court dismissed 2015-CA-0105 on March 29, 2016 and
2016-CA-0021 on April 15, 2016 for lack of final appealable orders.
{¶ 14} On August 3, 2016, Quinn filed a “Motion Amending Post Conviction
Petition.” It provides as follows1:
The Defendant[’s] original post conviction relief was filed in 2015 and the
Defendant is supplementing those claims. Supplementing claim one on the
original post conviction relief with One(A), One(B), One(C) and One(D). So
please read One(A), One(B), One(C) and One(D) in conjunction with the [original]
Claim One. Read the supplemental Claim Three(A) in conjunction with the
original Claim[s] 3, 7, and 8 that are in the original post conviction relief. Please
read Claim Nine (A) in conjunction with the original Claim Nine.
All of this information was discovered after the original claims were
completed, and due to the trial court retaining jurisdiction, a successive post
conviction relief [cannot] be submitted, so I am amending the original.
1
The above text appears in capital letters and bold print in the Motion, and Quinn indicated
that this is “so that the individuals that read this are not misled or lose their way.”
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Furthermore it would be contrary to judicial economy to produce a successive
claim while the original claim is still pending in the trial court.
The Defendant will put the supplemental Claims * * * at the beginning of the
amendment and then the following claims will be in numerical order starting with
ten, due to the fact that the original post conviction relief ended with Claim Nine. *
**.
Quinn set forth eight additional claims.
{¶ 15} On August 8, Quinn filed a “Motion to Amend Petition for Post Conviction,”
which provides that he “wishes to add exhibit twenty two to his motion, which is the docket
sheet that shows the defendant filed a demand for discovery prior to the defendant[’s]
trial.” On September 21, 2016, the trial court issued an Entry that provides: “The Court
hereby re-issues its March 9, 2016 findings of fact and conclusions of law reference the
defendant’s February 17, 2015 petition for post-conviction relief. The Court’s March 9,
2016 Entry is incorporated by reference herein.” The court’s “Findings of Fact and
Conclusions of Law” are as follows:
Upon a review of the case file, defendant’s motion and a review of
the jury trial transcript, the Court makes the following findings of fact;
On December 13, 2013, Beverly Quinn, defendant’s mother, a
seventy-seven year old woman, was hit by her forty-nine year old son.
Testimony was that he threatened to dump her out in the country.
Ms. Quinn, in fear of her life, escaped through a bedroom window and ran
to a neighbor and police were called.
Defendant had fled the scene when officers arrived. The officers
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conducted an investigation and took pictures of Mrs. Quinn. There was
visible redness on her forehead. They secured the property and
encouraged Mrs. Quinn to stay with a family member or a neighbor. She
stayed at her home.
Quinn returned in the early morning hours of December 14, 2013 and
dragged his mother from her bed, took her to his car, and would not permit
her to leave.
Defendant drove to a bridge on Ohio 334 and ordered her to jump off
the bridge, saying, “if you don’t jump, I’ll push you”. Defendant changed
his mind and did not push his mother off the bridge.
He got back into the car and ordered his mother to recant her earlier
statement to the police. She agreed to do so.
The defendant then drove his mother to the Wal-Mart on Bechtle
Ave., Springfield, Ohio, so he could get something. Her testimony was that
he repeatedly struck her with the butt of his right hand in her head. She
testified that he struck her ten to fifteen times.
She received severe bruising and pain to her head. He left the car
and walked towards Wal-Mart and Mrs. Quinn ran towards a Wal-Mart
employee. Mr. Quinn came over to the employee and tried to grab his
mother’s arm but the employee stopped him. He fled the scene. All of
these events were captured on a Wal-Mart surveillance video.
Police and EMS arrived on scene and Mrs. Quinn was taken to the
hospital where she told the police and nurses that the injuries she sustained
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were from her son, James Quinn.
THEREFORE, as a matter of law, the Court finds, based on the
above findings of fact, that defendant’s motion for post conviction relief does
not demonstrate sufficient operative facts to establish substantive grounds
for relief. The defendant has offered no new evidence that would create a
strong probability that a different result would occur if he were granted a
new trial. The victim’s testimony was clearly supported by the surveillance
video from Wal-Mart.
{¶ 16} We note that on May 1, 2017, Quinn filed a “Motion for Leave to File Brief
in Excess of Twenty Five Pages,” and on May 12, 2017, this Court issued an Order noting
that “Appellant’s brief totaling thirty-one (31) pages is accepted as filed on May 1, 2017.”
On May 22, 2017, Quinn filed a “Motion for Leave to Amend/Supplement the Appellant[’]s
Brief,” seeking to add “two extra pages,” and on June 7, 2017, his motion was sustained.
On August 8, 2017, and on August 15, 2017, Quinn filed documents entitled “Actual
Notice,” which appear to be further replies to the State’s brief. App.R. 18 provides for
the filing of an Appellant’s brief, an Appellee’s brief, and an Appellant’s reply brief, and
not for additional Actual Notices addressed to the State’s brief, and we will accordingly
not consider the Actual Notices.
{¶ 17} Quinn’s amended brief includes ten assignments of error, and 26 Exhibits
are attached to the brief. According to Quinn, on a page entitled “Appellant[’]s Exhibits,”
he is “submitting the exhibits used for his post conviction with new exhibits. These
include exhibits 1-26. There are new exhibits with the ones used on the post conviction.
I found it more effective to put the new ones with the old ones and submit them as one.”
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{¶ 18} We note that the State initially argues that the trial court lacked jurisdiction
to consider Quinn’s petition because it was untimely. The version of R.C. 2953.21(A)(2)
in effect at the time Quinn’s petition was filed provides in part as follows: “* * * a petition
under division (A)(1) of this section shall be filed no later than one hundred eighty days
after the date on which the trial transcript is filed in the court of appeals in the direct appeal
of the judgment of conviction * * *.” The transcript filed in Quinn’s direct appeal is time-
stamped August 18, 2014. 180 days from that date is Saturday, February 14, 2015.
Quinn then had until the following Monday, February 16, 2015, to file his petition. As
Quinn asserts in his Reply however, that day was President’s Day, and the court was
closed, meaning that he had until the following day to file his petition. Civ.R. 6(A). His
petition is time-stamped February 17, 2015, and we conclude it was timely filed.
{¶ 19} Quinn’s first assignment of error is as follows:
THE TRIAL COURT FAILED TO CONSIDER THE APPELLANT[’]S
CLAIMS BY FAILING TO RULE ON THEM INDIVIDUALLY. THE
APPELLANT PROPERLY AMENDED HIS POST CONVICTION WITHOUT
LEAVE OF COURT, AND THE TRIAL COURT FAILED TO RULE ON
THOSE ALSO.
{¶ 20} R.C. 2953.21(A)(1)(a) provides that “Any person who has been convicted
of a criminal offense * * * 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.” The statute further provides that the
“petitioner may file a supporting affidavit and other documentary evidence in support of
the claim for relief.” “We review trial court decisions on petitions for post-conviction relief
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under an abuse of discretion standard.” (Citations omitted.) State v. Perkins, 2d Dist.
Montgomery No. 25808, 2014-Ohio-1863, ¶ 27. “The term ‘abuse of discretion’ has been
defined as a decision that is unreasonable, arbitrary, or unconscionable.” (Citation
omitted.) State v. Howard, 2d Dist. Montgomery No. 26060, 2014-Ohio-4602, ¶ 8.
{¶ 21} R.C. 2953.21(C) provides:
The court shall consider a petition that is timely filed under division
(A)(2) of this section even if a direct appeal of the judgment is pending.
Before granting a hearing on a petition filed under division (A) of this section,
the court shall determine whether there are substantive grounds for relief.
In making such a determination, the court shall consider, in addition to the
petition, the supporting affidavits, and the documentary evidence, all the
files and records pertaining to the proceedings against the petitioner,
including, but not limited to, the indictment, the court's journal entries, the
journalized records of the clerk of the court, and the court reporter's
transcript. * * * If the court dismisses the petition, it shall make and file
findings of fact and conclusions of law with respect to such dismissal.
{¶ 22} R.C. 2953.21(D) provides: “Within ten days after the docketing of the
petition, or within any further time that the court may fix for good cause shown, the
prosecuting attorney shall respond by answer or motion. * * * Within twenty days from the
date the issues are raised, either party may move for summary judgment.” R.C.
2953.21(F) provides: “At any time before the answer or motion is filed, the petitioner may
amend the petition with or without leave or prejudice to the proceedings. The petitioner
may amend the petition with leave of court at any time thereafter.”
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{¶ 23} According to Quinn, the State’s Answer is a “nullity” because it was filed
late, and as such it cannot serve to block his ability to amend his original petition for post-
conviction relief without leave of court. Quinn asserts that he “amended his post-
conviction relief on * * * August 3, 2016, with a 25 page amendment/supplement, and
August 8, 2016 with exhibits 20, 22, the demand for discovery and an affidavit from
Beverly Quinn,” well before the court’s September 21, 2016 final appealable order. He
argues that “these amendments/supplements to his Post Conviction Petition were neither
denied nor overruled, but the Appellant feels this Court is owed a proper explanation in
regards to the amendments/supplements.”
{¶ 24} We initially note that the “State is not required to file a response to a post-
conviction petition, and the trial court is not required to consider the State’s response, if
any, before ruling on the petition. * * * Moreover, the time provided in R.C. 2953.21(D) for
the State to respond to Defendant’s post conviction petition is directory only, not
mandatory. * * *.” State v. Kingsolver, 2d Dist. Greene No. 02CA84, 2003-Ohio-3833, ¶
9.
{¶ 25} Reading R.C. 2953.21(F) in conjunction with R.C. 2953.21(D), we conclude
that it was incumbent for Quinn to obtain leave since the State had filed a motion a year
and a half before the proposed amendment. We cannot conclude that R.C. 2953.21
contemplated amending an original petition for post-conviction relief without leave of court
18 months after the original petition was filed. Accordingly, we find that the trial court did
not err in failing to address Quinn’s “Motion Amending Post Conviction Petition” and
“Motion to Amend Petition for Post Conviction.”
{¶ 26} Regarding the trial court’s failure to address his original nine claims
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individually, we note that in “order to be entitled to post-conviction relief, [Quinn] was
required to establish a violation of his constitutional rights that rendered his judgment of
conviction void or voidable. R.C. 2953.21; see also, e.g., State v. Zimpfer, 2d Dist.
Montgomery No. 26857, 2016-Ohio-7330, ¶ 26.” State v. DeVaughns, 2d Dist.
Montgomery No. 27132, 2017-Ohio-475, ¶ 23.
{¶ 27} In State v. Calhoun, 86 Ohio St. 3d 279, 291, 714 N.E.2d 905 (1999), the
Ohio Supreme Court noted that the “court of appeals found that the trial court did not
make sufficient findings of fact and conclusions of law because the trial court did not
address every argument raised by petitioner and allegedly supported by documentary
evidence.” The Ohio Supreme Court concluded as follows:
This court echoed the language of the statute in State v. Lester
(1975), 41 Ohio St. 2d 51, 70 O.O.2d 150, 322 N.E.2d 656, paragraph two
of the syllabus, where we held that findings of fact and conclusions of law
are mandatory under R.C. 2953.21 if the trial court denies the
petition. “ ‘The obvious reasons for requiring findings are “ * * * to apprise
petitioner of the grounds for the judgment of the trial court and to enable the
appellate courts to properly determine appeals in such a cause.” Jones v.
State (1996), 8 Ohio St. 2d 21, 22 [37 O.O.2d 357, 358, 222 N.E.2d 313,
314]. The exercise of findings and conclusions are essential in order to
prosecute an appeal. Without them, a petitioner knows no more than [that]
he lost and hence is effectively precluded from making a reasoned appeal.
In addition, the failure of a trial judge to make the requisite findings prevents
any meaningful judicial review, for it is the findings and the conclusions
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which an appellate court reviews for error.’ ” State ex rel. Carrion v. Harris
(1988), 40 Ohio St. 3d 19, 530 N.E.2d 1330, 1330-1331, quoting State v.
Mapson (1982), 1 Ohio St. 3d 217, 219, 1 OBR 240, 242, 438 N.E.2d 910,
912.
A trial court need not discuss every issue raised by appellant or
engage in an elaborate and lengthy discussion in its findings of fact and
conclusions of law. The findings need only be sufficiently comprehensive
and pertinent to the issue to form a basis upon which the evidence supports
the conclusion. State v. Clemmons (1989), 58 Ohio App. 3d 45, 46, 568
N.E.2d 705, 760-707, citing 5A Moore, Federal Practice (2 Ed. 1990), 52-
142, Section 52.06[1].
Thus, we hold that a trial court properly denies a petition for
postconviction relief, made pursuant to R.C. 2953.21, and issues proper
findings of fact and conclusions of law where such findings are
comprehensive and pertinent to the issues presented, where the findings
demonstrate the basis for the decision by the trial court, and where the
findings are supported by the evidence.
Calhoun, at 291-92.
{¶ 28} The trial court’s findings of fact make clear that the court credited Beverly’s
testimony regarding what happened to her when the offenses occurred, and that Quinn
committed the offenses. The court specifically found that Beverly reported to the police
and hospital personnel that the injuries she sustained were caused by her son, James
Quinn, consistent with her trial testimony. However, the court further found that Beverly’s
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“testimony was clearly supported by the surveillance video from Wal-Mart.” In affirming
the denial of Quinn’s motion for a new trial, almost three months before the trial court
initially issued its findings of fact and conclusions of law, this Court noted as follows
regarding the credibility of Beverly’s testimony at trial and the Wal-Mart video:
In the case before us, the trial court, without holding a hearing,
determined that the trial testimony of the victim was more credible than the
statements she made in the post-trial affidavits. The trial court relied on
the fact that the same witness had recanted testimony at previous hearings,
but did not specify what hearings, the nature of the testimony or how the
recantation affected the outcome. If the trial court was deciding credibility
based on Beverly’s testimony in other cases, a different proceeding other
than the trial, or on the witness’s reputation for truthfulness, then an abuse
of discretion occurred as a result of the trial court’s consideration of matters
outside of the record in this case. However, we fail to see how Beverly’s
lack of credibility in the past would lead to a conclusion that her testimony
at trial was more credible than the post-trial affidavit.
To determine which of the contradictory testimonies of a recanting
witness is credible and true, a trial court must be able to point to evidentiary
support in the record for its conclusion. In most cases where a motion for
a new trial is based on recanted testimony of the State’s primary witness, it
will be necessary for the trial court to conduct a hearing to weigh the
credibility of the testimony. * * * In other cases, a trial court can rule on the
motion for a new trial, without a hearing, when the affidavit appears
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“insufficient on its face,” especially when viewed “in light of physical and
medical evidence produced at trial and the circumstances surrounding the
case and the alleged recantation.” State v. McConnell, 2d Dist.
Montgomery No. 24315, 2011-Ohio-5555, ¶ 19. * * *
In the case before us, the trial court determined that the recanted
testimony would not affect the outcome of the trial because evidence of
Quinn’s guilt was established by the admission of the surveillance video.
We disagree. The record establishes that no testimony was given from
anyone to identify Quinn as the person in the video who made contact with
Beverly and the Walmart employee. On both direct and cross-
examination, the Walmart employee who talked with Beverly in the parking
lot, could not identify Quinn as the person who approached him and Beverly
and whom he asked to leave, as depicted in the video. Also contrary to the
trial court’s finding, the record contains no testimony from anyone who
positively identified the car in the video as the defendant’s car. Actually,
the only testimony at trial regarding what car Quinn was driving was from
Beverly, who said he was driving her tan sedan, not a white station wagon
as depicted in the video. We have viewed the video, which does not reveal
a clear or close enough view of the person’s face to match it with Quinn.
The video does not independently provide sufficient evidence to convict
Quinn of any of the charged offenses.
Quinn II, 2016-Ohio-140, ¶ 16-18.
{¶ 29} This Court further determined however, that “the record does contain
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sufficient support for finding that Beverly’s testimony at trial was more credible than her
post-trial affidavits.” Id., ¶ 19. This is because an “officer testified that Beverly identified
her son as the person who attacked her in her home. A detective testified that Beverly
identified her son as the person who forced her into a car, threatened to harm her, and
hit her face, causing visible injuries. The Walmart employee also testified that Beverly
told him her son was trying to hurt her.” Id. Finally, the emergency room nurse testified
that Beverly identified her son as the person who caused her injuries. Id. This Court
concluded as follows: “Based on the lack of Beverly’s credibility in her affidavits, and the
strength of her credibility at trial, as supported by the testimony of numerous witnesses,
we conclude that even if the jury was presented with the new evidence there is not a
strong probability that the outcome would be different.” Id., ¶ 21.
{¶ 30} Thus, we find that the trial court’s findings of fact and conclusions of law,
although not addressed to each of Quinn’s individual nine claims in his petition, sufficiently
apprised Quinn of the basis for the court’s disposition to enable meaningful review,
namely that he failed to set forth sufficient operative facts to establish substantive grounds
for relief due to the strength of Beverly’s credibility at trial. Further, as discussed in detail
below, the affidavits attached to Quinn’s petition appear insufficient on their face to
establish substantive grounds for post-conviction relief. Accordingly, Quinn’s first
assignment of error is overruled.
{¶ 31} Quinn’s remaining assignments of error are as follows:
The Appellant was prejudiced in four (4) ways by the fact that law
enforcement reports were not disclosed to defense. (a discovery violation)
this resulted in errors that affected the jury selection process. This is a
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prejudicial violation of due process (this error is drawn from claim one c).
And,
There were three (really four revealed in a subsequent error) Clark
County Sheriff reports that were not disclosed to the defense would have
provided a means to retrieve the exculpatory evidence in the car that the
state claims was used in the crimes for which the appellant is incarcerated
violating the appellant’s due process and the right to a fair trial (this
assignment of error is drawn from claim one (a) and claim one (b) from the
amended post conviction petition and claim one in the original post
conviction petition)
And,
The state failed to disclose law enforcement reports that were in
themselves favorable. This impaired the appellants right to access to
evidence (this drawn from claim one (1)(a)).
And,
The state failed to preserve the car the state claims was used in the
crimes for which the appellant is incarcerated. The state failed to let the
defense know of the destruction of the car prior to trial. The destruction of
the car is exculpatory evidence. [T]his is a violation of Due process and a
Brady violation. (this is drawn from claim one d).
And,
The state failed to disclose impeachment information. This in
violation of Brady, the due process of law, right to a fair trial. (this is drawn
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from claim ten (10) and fifteen (15) of the amended petition).
And,
The appellant was not given effective assistance of counsel violating
his sixth amendment right (this is drawn from claim three (a) from the
amended petition and claims 3, 7, and 8 from the original petition).
And,
The state withheld another sheriff report that is evidenced by the
nurses notes from the hospital. This is a Brady violation which affected the
appellant[’s] due process rights and the right to a fair trial (this drawn from
claim 11 of the amended post conviction petition).
And,
The Appellant’s peremptory challenges were reduced by one due to
the state not disclosing the uniform incident report that Deputy [******]
authored. (This drawn from Claim One (C)). This is a prejudicial violation
of due process.
And,
The Appellant was denied an opportunity to keep Deputy [******] on
the jury and pursue his Sixth Amendment right to an impartial jury and his
right to a fair trial.
{¶ 32} We initially note that the majority of Quinn’s assigned errors are based
upon information contained in his amended petition that is not properly before us, as
determined above. Assigned errors two, four, five and nine indicate that they are based
upon the supplemental information amended to claim one. Assigned error six indicates
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that it is based upon claims 10 and 15 of the amended petition, assigned error eight
indicates that it is based upon claim 11 of the amended petition, and assigned error ten
is clearly based upon the amended petition, because the deputy referenced in the
assignment is not mentioned in Quinn’s original petition. As we have previously noted,
“ ‘[l]itigants who choose to proceed pro se are presumed to know the law and correct
procedure, and are held to the same standards as other litigants.’ Yocum v. Means, Darke
App. No. 1576, 2002-Ohio-3803.” State v. Goldwire, 2d Dist. Montgomery No. 20838,
2005-Ohio-5784, ¶ 9. As we noted above, the trial court was not required to consider
Quinn’s amended petition, thus his supplemental arguments necessarily fail.
{¶ 33} Assigned errors three and seven are the only assigned errors that refer to
Quinn’s original petition. Assigned error three refers in part to claim 1, namely the State’s
alleged failure to disclose the allegedly exculpatory evidence in the car, and assigned
error seven refers to Quinn’s claims of ineffective assistance of defense counsel in claims
3, 7, and 8.
{¶ 34} We will first address Quinn’s seventh assigned error. Quinn asserts that
defense counsel “was asked to do five * * * things prior to trial,” namely “investigate the
house where the crimes were to have occurred,” “investigate the car that the alleged
crimes happened in,” “investigate the bridge the Appellant supposedly took his Mother to
throw her from,” “speak to Mike Simms to see if he had information,” and “speak to Mark
Rafferty to see if had information.” Quinn asserted that if Caleb Hilt had been
interviewed, “the Appellant would not be here. Brett Rinehart was ineffective.” Quinn
asserts that it “cannot be said that a complete and total failure to conduct any pre-trial
investigation or to interview a single witness is a reasonable choice when defending a
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defendant who protests his innocence.”
{¶ 35} As this Court further noted in Goldwire, ¶ 9-11:
“The post-conviction relief process is a civil collateral attack on a
criminal judgment, not an appeal of that judgment.” State v.
Monroe, Franklin App. No. 04AP-658, 2005-Ohio-5242. R.C. 2953.21
allows “[a]ny person who has been convicted of a criminal offense * * * who
claims that there was such a denial or infringement of the person's rights as
to render the conviction void or voidable under the Ohio Constitution or the
United States Constitution” to petition the trial court to vacate or set aside
his sentence. “[I]n order to succeed on such a petition, the petitioner must
show that a constitutional violation occurred at the time of his trial and
conviction.” State v. Hill, Greene App. No. 2004 CA 79, 2005-Ohio 3176.
It is the petitioner's burden to submit “evidentiary documents with sufficient
facts to demonstrate a constitutional deprivation, such as ineffective
assistance of counsel.” Id. (Internal citations omitted.) “Hindsight is not
permitted to distort the assessment of what was reasonable in light of
counsel's perspective at the time, and a debatable decision concerning trial
strategy cannot form the basis of a finding of ineffective assistance of
counsel.” Id. “When the evidence a defendant relies upon [is] dehors the
record that evidence must meet a threshold of cogency.” Id. “Cogent
evidence is that which is more than ‘marginally significant’ and advances a
claim ‘beyond mere hypothesis and desire for further discovery.’ ” Id.
“Rather than grant a hearing on the petition, the trial court must
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determine from an analysis of the petition and its supporting affidavits
whether substantive grounds for the relief are present, meriting a hearing.”
Id. “Broad conclusory allegations are insufficient, as a matter of law, to
require a hearing.” State v. Coleman, Clark App. Nos. 04CA43, 04CA44,
2005-Ohio-3874. “A petitioner is not entitled to a hearing if his claim for relief
is belied by the record and is unsupported by any operative facts other than
Defendant's own self-serving affidavit or statements in his petition, which
alone are legally insufficient to rebut the record on review.” Id. “In reviewing
petitions for post-conviction relief, a trial court may, in the exercise of its
sound discretion, weigh the credibility of affidavits submitted in support of
the petition in determining whether to accept the affidavit as true statements
of fact.” Id.
“The most significant restriction on Ohio's statutory procedure
for post-conviction relief is that the doctrine of res judicata requires that the
claim presented in support of the petition represent error supported by
evidence outside the record generated by the direct criminal
proceedings.” State v. Monroe, Franklin App. No. 04AP-658, 2005-Ohio-
5242. “Under the doctrine of res judicata, 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.” State v. Perry (1967), 10 Ohio St. 2d 175, 180, 226 N.E.2d 104.
-27-
“Our statutes do not contemplate relitigation of those claims
in post conviction proceedings where there are no allegations to show that
they could not have been fully adjudicated by the judgment of conviction
and an appeal therefrom.” Id. “To overcome the res judicata bar, the
petitioner must produce new evidence that renders the judgment void or
voidable, and show that he could not have appealed the claim based upon
information contained in the original record.” State v. Aldridge (1997),
[120] Ohio App.3d 122, 151, 697 N.E.2d 228. “Res judicata also implicitly
bars a petitioner from ‘repackaging’ evidence or issues which either were,
or could have been, raised in the context of the petitioner's trial or direct
appeal.” Monroe.
{¶ 36} Quinn’s brief suggests that he directed defense counsel to investigate the
house, the car, the bridge, and to speak to Simms and Raferty before trial. However, it
is not clear and Quinn does not establish by an admissible affidavit or any documentary
evidence how Simms’ or Raferty’s testimony would have aided his defense. We note
that Quinn did assert on direct appeal that defense counsel provided ineffective
assistance in failing to interview Hilt, and that argument is barred by res judicata. Quinn
I, 2016-Ohio-139, ¶ 38.
{¶ 37} Regarding Quinn’s first claim about the allegedly exculpatory evidence in
the car, we conclude that his claim is merely speculative. “An affidavit is a written
declaration under oath * * *.” R.C. 2319.02. “A paper purporting to be an affidavit, but
not to have been sworn to before an officer, is not an affidavit.” In re Disqualification of
Pokorny, 74 Ohio St. 3d 1238, 657 N.E.2d 1345 (1992). Quinn’s petition is not supported
-28-
by any affidavit by him, but only by his statements in support of the petition, which are
legally insufficient to establish operative facts. Beverly failed to confirm her statement
by oath or affirmation, and it is accordingly not an affidavit and of no effect. Peterson’s
affidavit does not establish that exculpatory items were in the car or that the State withheld
them from Quinn. Finally, we note that the only other affidavit attached to Quinn’s petition,
the Savage affidavit, which purports to provide an alibi for Quinn’s whereabouts at the
time of the offenses, does not state the precise date that he avers he observed Quinn
sleeping on Raferty’s couch. For the foregoing reasons, Quinn’s remaining assigned
errors are overruled, and the judgment of the trial court is affirmed.
.............
FROELICH, J. and TUCKER, J., concur.
Copies mailed to:
Andrew P. Pickering
James E. Quinn
Hon. Douglas M. Rastatter