DocketNumber: No. 7-88-3.
Citation Numbers: 582 N.E.2d 30, 64 Ohio App. 3d 549
Judges: THOMAS F. BRYANT, Judge.
Filed Date: 9/25/1989
Status: Precedential
Modified Date: 1/13/2023
This is an appeal by the defendant, Henry Potter, from a judgment of the Court of Common Pleas of Henry County denying defendant's amended second petition for post-conviction relief.
Defendant-appellant asserts as his first assignment of error:
"The trial court erred in dismissing the defendant's second amended petition for post-conviction relief without holding a hearing and making findings of fact and conclusions of law as required by Ohio Revised Code Section
R.C.
R.C.
"(C) Before granting a hearing, 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 and supporting affidavits, 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.
"* * *
"(E) Unless the petition and the files and records of the case show the petitioner is not entitled to relief, the court shall proceed to a prompt hearing on the issues, hold the hearing, and make and file written findings of fact and conclusions of law upon entering judgment."
"This statutory scheme requires the trial court to consider the allegations of the petition and the particular facts of a petitioner's case; if, upon such consideration, the trial court finds no grounds for a hearing the court is required to make and file findings of fact and conclusions of law as to the reasons for dismissal and as to the grounds for relief relied upon in the petition." State v. Lester (1975),
"`* * * 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 (1966),
R.C.
Applying Carrion and Lester and the requirements of R.C.
Appellant's first assignment of error is not well taken and is overruled.
Defendant-appellant asserts as his second assignment of error:
"The trial court improvidently granted a change of venue from Paulding County to Henry County thereby depriving the defendant of a trial by a jury of his peers as secured to him by the
Appellant expanded the thrust of his second assignment of error in his reply brief, stating that the trial court improvidently granted a change of venue from Paulding County to Henry County, thereby depriving appellant of a trial by a jury of his peers in the county where the crime is alleged to have been committed, consequently prejudicing appellant and violating his rights to due process and equal protection of the laws, as secured to him by Section
Section
"In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process to procure the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed * * *."
The
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense."
The
"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Crim.R. 18 provides guidelines for venue and change of venue in a criminal case:
"(B) Change of Venue; Procedure Upon Change of Venue. Upon the motion of any party or upon its own motion the court may transfer an action to any court having jurisdiction of the subject matter outside the county in which trial would otherwise be held, when it appears that a fair and impartial trial cannot be held in the court in which the action is pending."
R.C.
"Notwithstanding any other requirement for the place of trial, venue may be changed upon motion of the prosecution, the defense, or the court, to any court having jurisdiction of the subject matter outside the county in which trial would otherwise be held, when it appears * * * that trial should be held in another jurisdiction for the convenience of the parties and in the interests of justice."
Appellant claims that the trial court's granting appellant's motion for change of venue was improvident and deprived him of a trial by jury of his peers in the county where the crime was committed and that the granting of the motion prejudiced him and violated his constitutional rights as previously outlined.
Appellant relies on State v. Herring (1984),
This is not the holding in Herring or the law by statute or Criminal Rule in Ohio. Herring, supra, at 18, 21 OBR at 19,
The trial court upon review of the material presented by appellant in support of his motion for change of venue found that he had made a clear and manifest showing that pretrial publicity was so pervasive and prejudicial that an attempt to seat a jury would be a vain act. While the best test of prejudice in the community may be the examination of jurors on the voir dire, it is *Page 554
certainly not required by case law, statute, or rule. The determination of a change of venue lies within the sound discretion of the trial court and unless upon review there is found to be an abuse of discretion the decision will not be reversed. State v. Tannyhill (1956),
The fundamental right being protected here is the appellant's constitutional right to a fair and impartial trial by jury, and if it appears to the court through motion by one of the parties or upon its own motion "that a fair and impartial trial can not be had in the county where a case is pending, such court shall order the accused tried in another county." Tannyhill, supra, at 467, 1 O.O.2d at 391,
"[I]t is fundamental rights which the
"It follows that the mere direction of the state law that a cause under given circumstances shall be tried in one forum instead of another, or may be transferred when brought from one forum to another, can have no tendency to violate the guaranty of the equal protection of the laws where in both the forums equality of law governs and equality of administration prevails." Cincinnati St. Ry. Co. v. Snell (1904),
Appellant's trial in Henry County was conducted under the same laws and administrative procedure as it would have been had the trial been held in Paulding County. Appellant's constitutional right to equal protection of the laws has not been violated.
The
Appellant in support of his assignment of error alleges that he was not advised of the application for change of venue, that his signature was forged on the affidavit in support, that his new counsel was ineffective in failing to seek a writ of prohibition contesting the change of venue to Henry County and finally that his appellate counsel in earlier proceedings was ineffective in failing to timely raise the matter of counsel's effectiveness.
Appellant's allegations of counsel's effectiveness were properly dealt with by the trial court. Appellant's allegations of not being properly informed of the application for change of venue and that his signature was forged on the affidavit in support was not presented to the trial court and cannot be argued on appeal. However, in deciding appellant's second petition for post-conviction relief, the trial court found that the appellant did in fact sign his affidavit in support of his motion for a change of venue before a notary public. Furthermore, whether appellant was informed of the change of venue motion or his signature was forged on the affidavit in support is irrelevant since the court can move for change of venue sua sponte and there is no requirement that defendant consent in writing.
We find no abuse of discretion on the part of the trial court in its granting of the motion for change of venue. Further, we find that appellant's constitutional rights were protected, not violated, by the lower court's decision to grant the motion for change of venue.
Appellant's second assignment of error is not well taken and is overruled.
For the reasons stated above and upon the authorities cited and discussed, the judgment of the Common Pleas Court of Henry County is affirmed.
Judgment affirmed.
EVANS, P.J., and SHAW, J., concur. *Page 556