State v. King ( 2022 )

[Cite as State v. King, 2022-Ohio-676.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. Earle E. Wise, J.
:
-vs- : Case No. 2021CA00140
:
DENY L. KING :
: OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal appeal from the Stark County
Court of Common Pleas, Case No. 2019-
CR-1460
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 9, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KYLE L. STONE DENY L. KING
Stark County Prosecutor # A772161
BY: TIMOTHY E. YAHNER North East Ohio Correctional Center
Assistant Prosecutor 2240 Hubbard Road
110 Central Plaza South Youngstown, OH 44505
Canton, OH 44702
Stark County, Case No. 2021CA00140 2
Gwin, P.J.
{¶1} Appellant Deny King appeals the November 9, 2021 judgment entry of the
Stark County Court of Common Pleas denying his petition for post-conviction relief.
Appellee is the State of Ohio.
Facts & Procedural History
{¶2} On February 12, 2020, appellant was found guilty by a jury of one count of
aggravated murder, a violation of R.C. 2903.01(A), one count of felonious assault, a
violation of R.C. 2903.11, and one count of having a weapon while under disability, a
violation of R.C. 2923.13. The counts contained firearm specifications and repeat
offender specifications. The trial court sentenced appellant on February 18, 2020, and
issued a judgment entry on March 6, 2020.
{¶3} Appellant appealed his convictions and sentence to this Court, arguing: (1)
the verdict was against the manifest weight of the evidence; (2) the verdict was insufficient
as a matter of law; and (3) the trial court’s sentencing was in error, depriving appellant of
his constitutional rights. In State v. King, 5th Dist. Stark No. 2020 CA 00064, 2021-Ohio-
1636, this Court overruled appellant’s assignments of error and affirmed appellant’s
convictions and sentence.
{¶4} On August 6, 2021, appellant filed an application for reopening of his direct
appeal pursuant to Appellate Rule 26, arguing ineffective assistance of appellate counsel.
Appellant listed four assignments of errors that were not considered on appeal due to
appellate counsel’s alleged deficient performance. First, appellant alleged appellate
counsel should have argued that trial counsel was ineffective. Appellant stated trial
counsel was ineffective for the following reasons: he failed to conduct a meaningful pre-
Stark County, Case No. 2021CA00140 3
trial investigation, he failed to object to prejudicial testimony, he failed to request a self-
defense instruction, he failed to view the entire video of the incident, and he failed to
object to alleged prosecutorial misconduct. Second, appellant asserted appellate counsel
failed to assign as error the trial court’s incorrect placement of the burden on appellant on
his self-defense claim. Third, appellant argued his appellate counsel should have
included prosecutorial misconduct as an assignment of error. Finally, appellant asserted
appellate counsel was ineffective for failing to assign as error that the trial court abused
its discretion in not declaring a mistrial.
{¶5} This Court issued a detailed denial of appellant’s application for reopening
of his direct appeal on September 29, 2021. Appellant appealed our denial of his
application to reopen to the Ohio Supreme Court. The Ohio Supreme Court declined
jurisdiction of appellant’s appeal in State v. King, 165 Ohio St.3d 1524, 2022-Ohio-258,
179 N.E.3d 1287.
{¶6} On April 30, 2021, appellant filed a petition for post-conviction relief.
Appellee filed a response on May 28, 2021. Appellant filed a reply on July 16, 2021.
{¶7} In his petition, appellant lists three grounds for relief. First, appellant alleges
his trial counsel was ineffective for failing to conduct a meaningful pre-trial investigation.
Specifically, appellant states his counsel failed to present the fact that many of the state’s
witnesses had criminal records, including Mr. Garner. Second, appellant asserts his trial
counsel was ineffective for failing to have an expert independently examine the video
recording of the events at the bar on the night of the incident. Third, appellant contends
his case was compromised because the victim’s family and friends were dining in direct
proximity to the jurors on February 11, 2020.
Stark County, Case No. 2021CA00140 4
{¶8} Attached to his petition is the affidavit of appellant, stating the following: his
trial counsel did not conduct a meaningful pre-trial investigation in his case; trial counsel
did not hire an expert witness; and his trial was not fair. Appellant also filed the affidavit
of Bertram McCleskey (“McCleskey”). McCleskey avers he reviewed the transcripts and
was concerned about “someone’s testimony” regarding the video in the case. He believes
the jury should have viewed the unedited video, “since doing so may have confirmed the
defendant’s assertion that the victim was shot in the back by someone else.” Appellant
also attached photographs and a timeline, allegedly of the victim’s family dining near the
jurors on February 11, 2020.
{¶9} The trial court issued a judgment entry on November 9, 2021, denying and
dismissing appellant’s petition. The trial court addressed the arguments contained in
appellant’s petition. First, as to appellant’s claims of ineffective assistance of counsel for
not conducting a meaningful pre-trial investigation and for failing to hire an expert to
examine the video submitted at trial, the trial court found the claims were not supported
by the evidence presented at trial. The trial court additionally noted potential testimony,
from an expert or other witness, that Mr. Garner removed the firearm possessed by the
victim, or that portions of the video were missing, were purely speculative arguments. The
trial court determined it is unlikely that a different presentation of videos or evidence would
have made a difference in the outcome of the trial. Finally, the trial court found appellant’s
claims of ineffective assistance are barred by the doctrine of res judicata.
{¶10} The trial court next addressed appellant’s claim that he obtained
surveillance video showing jurors and the victim’s family eating at the same restaurant on
February 11, 2020. The trial court reviewed the transcript and determined the court
Stark County, Case No. 2021CA00140 5
instructed the jurors throughout the trial that they were not to talk about the case among
themselves or with anyone else, and this admonishment was given to the jurors before
they took their lunch break on February 11, 2020. Further, before taking the verdict and
before allowing spectators into the courtroom on February 12, 2020, the trial court asked
the jurors whether or not anyone had attempted to speak with them or attempted to
influence their verdict. The jurors confirmed that no one had. Finally, the trial court noted
that appellant did not provide any affidavits from jurors or restaurant employees
authenticating the purported photographs.
{¶11} Appellant appeals the November 9, 2021 judgment entry of the Stark
County Court of Common Pleas Court and assigns the following as error:
{¶12} “I. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
PREJUDICIAL ERROR BY NOT MAKING FINDINGS OF FACT AND CONCLUSIONS
OF LAW TO EACH GROUND SET FORTH IN APPELLANT’S PETITION ACCORDING
TO STATE V. MAPSON, 1 OHIO ST.3D 217, 219, 438 N.E.2D 910 AND STATE V.
LESTER, 41 OHIO ST.2D 51.”
{¶13} “II. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
PREJUDICIAL ERROR BY NOT ORDERING AN EVIDENTIARY HEARING THAT
WOULD HAVE PROVEN, INTER ALIA, INEFFECTIVE ASSISTANCE OF COUNSEL,
JURY IMPROPRIETY AND TAMPERING WITH EVIDENCE, AND FURTHER
COMMITTED PREJUDICIAL ERROR IN HOLDING THAT APPELLANT’S GROUNDS
WERE BARRED BY RES JUDICATA.”
Stark County, Case No. 2021CA00140 6
I.
{¶14} In his first assignment of error, appellant contends the trial court abused its
discretion and committed error in not making findings of fact and conclusions of law when
it denied his petition. We disagree.
{¶15} R.C. 2953.21(H) states, “if the court does not find grounds for granting relief,
it shall make and file findings of fact and conclusions of law and shall enter judgment
denying relief on the petition.” If a court fails to do so, the decision is subject to reversal
on appeal. State v. Reese, 5th Dist. Muskingum No. CT2017-0017, 2017-Ohio-4263.
The findings of fact and conclusions of law should be explicit enough to give the appellate
court a clear understanding of the basis of the trial court’s decision and enable it to
determine the grounds on which the trial court reached its decision. State v. Jacks, 5th
Dist. Licking No. 99 CA 113, 2000 WL 329740 (Feb. 29, 2000), citing State v. Lester, 41
Ohio St.2d 51, 322 N.E.2d 656 (1975). The purpose of requiring the trial court to include
findings of fact and conclusions of law in its judgment entry is to sufficiently apprise both
the petitioner and the potential appellate court of the grounds for its decision. State v.
Staats, 5th Dist. Stark No. 2015CA00207, 2016-Ohio-2921.
{¶16} Appellant cites State v. Mapson, 1 Ohio St.3d 217, 438 N.E.2d 910 (1982),
in support of his argument. We find the judgment entry in this case satisfies the policy
considerations contained in Mapson. The trial court did not label its entry as “findings of
fact and conclusions of law,” but that is what its words import. State ex rel. Carrion v.
Harris, 40 Ohio St.3d 19, 530 N.E.2d 1330 (1988). We have previously held, “as long as
the basis for the court’s ruling can be gleaned from the entry, R.C. 2953.21 has been
complied with.” State v. Wells, 5th Dist. Licking No. 94 CA 113, 1995 WL 495308; State
Stark County, Case No. 2021CA00140 7
v. Somers, 5th Dist. Muskingum No. CT2019-0020, 2019-Ohio-3157. In this case, the
trial court issued a detailed entry, including factual information and citations to caselaw.
Additionally, the trial court specifically stated it was “making findings of fact and
conclusions of law” prior to its “analysis” section. The trial court sufficiently apprised
appellant and this Court of the grounds for its decision.
{¶17} Appellant’s first assignment of error is overruled.
II.
{¶18} In his second assignment of error, appellant argues the trial court committed
error in denying his petition for post-conviction relief and in denying his request for an
evidentiary hearing. We disagree.
{¶19} R.C. 2953.21 affords a petitioner post-conviction relief “only if the court can
find that there was such a denial or infringement on the rights of the prisoner as to render
the judgment void or voidable under the Ohio Constitution or the United States
Constitution.” State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). The appropriate
standard of review for reviewing a trial court’s decision to dismiss a petition for post-
conviction relief, without an evidentiary hearing, involves a mixed question of law and fact.
State v. Durr, 5th Dist. Richland No. 18CA78, 2019-Ohio-807. This Court must apply a
manifest weight standard in reviewing a trial court’s findings on factual issues underlying
the substantive grounds for relief, but we must review the trial court’s legal conclusions
de novo. Id.{¶20} Under R.C. 2953.21, a petitioner seeking post-conviction relief is not
automatically entitled to an evidentiary hearing. State v. Calhoun, 86 Ohio St.3d 279, 714
N.E.2d 905 (1999). The Ohio Supreme Court has recognized, “[i]n post-conviction cases,
Stark County, Case No. 2021CA00140 8
a trial court has a gatekeeping role as to whether a defendant will even receive a hearing.”
State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77.
Ineffective Assistance
{¶21} Appellant set forth three claims in his petition for post-conviction relief. In
the first and second claims, appellant alleged trial counsel rendered ineffective assistance
because he failed to conduct a pre-trial investigation and failed to hire an expert to review
the video of the incident.
{¶22} A properly licensed attorney is presumed competent. State v. Hamblin, 37
Ohio St.3d 153, 524 N.E.2d 476 (1988). In an ineffective assistance analysis, we must
determine whether counsel’s assistance was ineffective; whether counsel’s performance
fell below an objective standard of reasonable representation and was violative of any of
his essential duties to the client. Id. If we find ineffective assistance of counsel, we must
then determine whether or not the defense was actually prejudiced by counsel’s
ineffectiveness such that the reliability of the outcome of the trial is suspect. Id. This
requires a showing there is a reasonable probability that, but for counsel’s unprofessional
error, the outcome of the trial would have been different. Id.{¶23} Trial counsel is entitled to a strong presumption that all decisions fall within
the wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673,
693 N.E.2d 267 (1998). Even debatable trial tactics and strategies do not constitute
ineffective assistance of counsel. State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189(1980).
{¶24} Appellant contends the trial court committed error in denying the petition
without an evidentiary hearing as to his ineffective assistance claims. However, before a
Stark County, Case No. 2021CA00140 9
petitioner can be granted a hearing in proceedings for post-conviction relief upon a claim
of ineffective assistance of trial counsel, petitioner bears the initial burden to submit
evidentiary quality material containing sufficient operative facts that demonstrate a
substantial violation of any of trial counsel’s essential duties, in addition to prejudice
arising from that ineffectiveness. State v. Church, 5th Dist. Stark No. 2017CA00216,
2018-Ohio-368, citing State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999). The
failure to present essential operative facts in supporting evidentiary quality materials
warrants dismissal of the petition for post-conviction relief without a hearing. State v.
Murphy, 5th Dist. Tuscarawas No. 87AP050039, 1987 WL 19835 (Oct. 29, 1987).
{¶25} Appellant’s evidence as to alleged insufficient pre-trial investigation by his
counsel is his own affidavit. As self-serving testimony, the trial court could give little or
no weight to his affidavit. State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999).
A petitioner’s self-serving affidavit generally does not meet his or her required minimum
level of cogency. State v. Kapper, 5 Ohio St.3d 36, 448 N.E.2d 823 (1983). Appellant’s
affidavit does not demonstrate a substantial violation of his trial counsel’s essential duty,
or demonstrate prejudice arising from that ineffectiveness, particularly since there is no
demonstration that the prior criminal charges of Mr. Garner were admissible at trial, or
that any of the other witnesses would have stated Mr. Garner removed the firearm
possessed by the victim.
{¶26} As to the alleged ineffective assistance for the failure to hire an expert to
examine the video of the incident, appellant opines in his affidavit that the State’s witness
altered the footage and, if it were left intact, “the footage would have revealed that
someone other than me fired the fatal shot,” as the victim’s back was never turned
Stark County, Case No. 2021CA00140 10
towards him. As stated above, a petitioner’s self-serving affidavit generally does not meet
his or her required minimum level of cogency. State v. Kapper, 5 Ohio St.3d 36, 448
N.E.2d 823 (1983). Further, appellant does not explain how a defense expert would have
changed the result of the trial. State v. Whitman, 5th Dist. Stark No. 2018CA00134, 2019-
Ohio-377. This is particularly true because appellant’s defense at trial was defense of
others, not that he did not fire the fatal shot. At trial, appellant identified the person he
was allegedly defending. In his direct appeal, appellant argued the evidence
demonstrated he shot the victim in defense of another.
{¶27} Appellant also relies on the affidavit of McCleskey in support of his claim.
McCleskey averred that “the jury must be able to view the entire unedited unredacted
version as anything else has the potential of having probative evidence truncated whether
inadvertently or otherwise.” However, there is no indication that McCleskey viewed the
video footage, and any claim that a portion of the video was missing at trial is speculative.
Further, McCleskey opined only that the alleged unredacted footage, “may have
confirmed [appellant’s] assertion that the victim was shot in the back by someone else.”
However, appellant never made the assertion that he did not shoot the victim in the back
at trial, and this assertion was contradicted by the evidence, including appellant’s own
testimony that he shot the victim in defense of himself or others. Thus, there is not a
reasonable probability that, but for the lack of expert or a different presentation of the
video, the outcome of the trial would have been different.
{¶28} We thus find appellant failed to support his petition with evidentiary quality
materials supporting his contention that trial counsel failed to perform any of his essential
duties, or that any prejudice arose from this alleged ineffectiveness.
Stark County, Case No. 2021CA00140 11
{¶29} Additionally, we also find the trial court correctly rejected these two claims
on the basis of res judicata. Under the doctrine of res judicata, a final judgment of
conviction bars a 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 the
judgment of conviction or on an appeal from that judgment. State v. Perry, 10 Ohio St.2d
175, 226 N.E.2d 104 (1967).
{¶30} The arguments about his trial counsel’s alleged failure to conduct a
meaningful pre-trial investigation and alleged failure to hire a video expert could have
been raised on direct appeal. State v. Norris, 5th Dist. Muskingum No. CT2016-0037,
2017-Ohio-1570. Additionally, appellant did raise the issue of ineffective assistance of
trial counsel in his Appellate Rule 26 application for re-opening with regards to pre-trial
investigation and the alleged failure of his trial counsel to impeach several of the State’s
witnesses due to their criminal history. We overruled his argument. Specifically, with
regard to Mr. Garner, we stated, “the record does not show Henderson Garner has any
criminal conviction which would be admissible under Evid.R. 609.”
Jury Impropriety
{¶31} Appellant’s final claim is that there was jury impropriety because he
obtained surveillance video showing the jurors and the victim’s family ate at the same
restaurant on February 11, 2020, smiling and/or waving at each other. We find the trial
court did not commit error in overruling this claim. As detailed by the trial court, the
transcript reveals the trial court instructed the jurors throughout the trial that they were not
to talk about the case among themselves or with anyone else, and this admonishment
Stark County, Case No. 2021CA00140 12
was given to the jurors before they took their lunch break on February 11, 2020.
Additionally, prior to taking the verdict and before allowing spectators into the courtroom
on February 12, 2020, the trial court asked the jurors whether or not anyone had
attempted to speak with them or attempted to influence their verdict. The jurors confirmed
that no one had.
{¶32} Appellant contends the trial court committed error in denying the petition
without an evidentiary hearing as to this claim. We disagree. A defendant advancing a
post-conviction petition is required to present evidence which meets a minimum level of
cogency to support their claims. State v. Scott, 5th Dist. Licking No. 15 CA 81, 15 CA 82,
2016-Ohio-3488.
{¶33} Appellant attached photographs purportedly taken from restaurant security
cameras and a “timeline” of the alleged video. However, the notes and photographs were
not authenticated. Appellant did not provide any affidavits from jurors or restaurant
employees authenticating the purported video, photographs, or timeline. The remaining
information about the alleged juror misconduct came from appellant’s affidavit. As self-
serving testimony, the trial court could give little or no weight to his affidavit. State v.
Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999). Despite appellant’s assertion that
he will rectify the issue at an evidentiary hearing, it is appellant’s burden to present
evidence in his petition which meets a minimum level of cogency to support his claims.
Appellant fails to support his petition with evidentiary quality materials with regard to jury
impropriety.
{¶34} Finally, we find appellant’s final claim is barred by the doctrine of res
judicata. Appellant states in his petition that an investigator he hired went to the
Stark County, Case No. 2021CA00140 13
restaurant on February 14, 2020 and obtained the video footage and/or photographs of
the jurors and victim’s family eating near each other and being friendly. This was prior to
when the trial court sentenced appellant on February 18, 2020, prior to when the trial
court entered final judgment against appellant, and prior to when he filed his direct appeal.
Accordingly, he could have brought this claim before the trial court, and on direct appeal.
{¶35} The affidavits, documentary evidence, files, and the records do not
demonstrate appellant set forth sufficient operative facts to establish substantive grounds
for relief. Accordingly, the trial court properly denied appellant’s petition for post-
conviction relief without holding an evidentiary hearing. Appellant’s second assignment
of error is overruled.
{¶36} Based on the foregoing, appellant’s assignments of error are overruled.
Stark County, Case No. 2021CA00140 14
{¶37} The November 9, 2021 judgment entry of the Stark County Court of
Common Pleas is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Wise, Earle, J., concur